State v. Thurmond

Banke, Presiding Judge.

In August of 1988, an indictment was returned charging defendant Thurmond with selling marijuana. A jury found him guilty on this charge, following which he filed a motion for new trial and a motion in arrest of judgment, both of which were denied on January 31, 1989. On March 27, 1989, Thurmond filed both an “extraordinary motion for new trial” and a motion for leave to file an out-of-time appeal. The trial court granted the motion for leave to file an out-of-time appeal, whereupon Thurmond filed a notice of appeal from the overruling of his motion for new trial; however, on August 1, 1989, the court vacated its order granting leave to file the appeal and instead granted Thurmond a new trial. On that same date, Thurmond filed a “plea of former jeopardy.” Although the record before us does not reflect the court’s ruling on the latter plea, the state asserts that it was granted. Case No. A90A0032 is an appeal by the state from the court’s order granting the defendant’s extraordinary motion for new trial, while case No. A90A0192 is an appeal by Thurmond from the “judgment of conviction and the overruling of his post trial motions by order dated January 31, 1989.” Held:

Decided April 16, 1990. Timothy G. Madison, District Attorney, for appellant. N. David Wages, for appellee.

1. The state’s appeal is dismissed on the ground that it is not authorized under OCGA § 5-7-1 to appeal the grant of a new trial in a criminal case. See generally State v. Hollomon, 132 Ga. App. 304, 306 (208 SE2d 167) (1974).

2. Thurmond’s appeal is dismissed on the ground that the issues raised therein have been rendered moot by the grant of his extraordinary motion for new trial.

Appeals dismissed.

Birdsong and Cooper, JJ., concur.