lawskills
Google
search the Web search LawSkills.com
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
AMOS v. THE STATE (two cases).
63339.
63340.
MCMURRAY, Presiding Judge.
Theft by taking, etc. Catoosa Superior Court. Before Judge Loggins.
Defendant was indicted for the offense of theft by taking of a camper cover of the value of $300, a felony. He was also charged by accusation with unlawfully permitting an unlicensed person to drive a motor vehicle. At trial he changed his pleas of not guilty to guilty and was sentenced to 12 months for the misdemeanor to be served concurrently with a three-year sentence for theft by taking. However, the last year of the felony sentence could be served on probation upon the payment of a fine of $5,000, including costs.
Thereafter, in both cases in the trial court (Indictment No. 9378 and Accusation No. 9251) defendant filed an extraordinary motion for new trial contending that since the rendition of the verdicts of guilty he has discovered material evidence, not merely cumulative or impeaching in its character, but relating to new and material facts, which will authorize and require that he be granted a new trial, the same being not due to any want of diligence of the defense. The defendant further contended that the evidence was not acquired sooner and is so material that it would probably produce a different result. By amendment he contended that the testimony of one Jackie Camper (apparently the same Jackie Camper that he is charged with allowing to drive a motor vehicle without first obtaining a valid driver's license) would be that he (defendant) did purchase the property he was accused of stealing and that this testimony (Camper's) was not available to movant at the time of trial. Attached to the amendment to the motion was the affidavit of Camper who deposed under oath that he was personally with the defendant when defendant paid $40 for the purchase of the camper top for his pick-up truck, "said camper top being the same as the one" for which defendant was indicted and convicted of theft by taking. No evidence at all was presented with reference to the extraordinary motion for new trial in the accusation case. Both motions came on for a hearing on the same date and were denied. The trial court, in the theft by taking case, set forth that the defendant did not appear at the hearing, hence the motion was denied. Defendant appeals in each case. Held:
1. The notice of appeal in each case refers to the fact that a transcript of evidence and proceedings would not be filed for inclusion in the record. It is noted here that in the brief of the appellee, the district attorney refers to a transcript apparently taken with reference to pleas of guilty of the defendant and his codefendant (Jackie L. Camper) contending both were charged with the theft of the camper top and with reference to the examination by the trial court as to their constitutional rights in the handling of the pleas of guilty to both charges. However, we find no such transcript as a part of the record here. We proceed, however, to consideration of the appeals in which no such transcript has been filed and the court orders in both cases reciting that the extraordinary motions were denied after consideration.
118 (172 SE2d 661). See also Snell v. Smith, 228 Ga. 249, 250 (184 SE2d 645); Brown v. Caldwell, 229 Ga. 186 (1) (190 SE2d 52); Williams v. Caldwell, 229 Ga. 453, 454 (2) (192 SE2d 378).
2. Further, if there was no verdict of guilty there can be no trial as the defendant waived trial upon his pleading guilty. One who has entered a plea of guilty cannot move for a new trial. See Crosby v. State, 148 Ga. App. 215 (1) (251 SE2d 81); Alligood v. State, 108 Ga. App. 453, 454 (1) (133 SE2d 431); Bearden v. State, 13 Ga. App. 264 (1), 265-266 (79 SE 79). Further, where at no time has a defendant sought to withdraw his plea of guilty a motion for new trial cannot be employed as a motion of withdrawing the plea. See Wofford v. State, 141 Ga. App. 207 (233 SE2d 53). Compare Lee v. State, 146 Ga. App. 189, 191 (II, III), 192 (245 SE2d 878).
3. Here the defendant has only made a general statement that he did not know of the co-defendant's evidence and could not have discovered it by the exercise of ordinary diligence. Such general statements by the defendant and counsel that they did not know of the evidence and could not have discovered it by the exercise of due diligence are insufficient. See James v. State, 115 Ga. App. 822, 823-824 (156 SE2d 183). Surely the defendant was aware of his co-defendant and of his knowledge at the time he entered the plea. The mere allegation and the affidavit of the co-defendant is simply insufficient to hold that the trial court abused its discretion in refusing to grant a new trial. See Atkins v. State, 228 Ga. 578, 580 (4) (187 SE2d 132).
There is no merit in the enumerations of error contending that the trial court erred "because it erroneously did not give proper consideration" to the proposed newly discovered evidence.
Eugene S. Taylor, for appellant.
DECIDED FEBRUARY 16, 1982.
Thursday May 21 20:48 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com