State v. Hood

James Hood was tried by a Clarke County jury, convicted of murder and several other crimes, and sentenced for the murder to a term of imprisonment for life with the possibility of parole. The State appeals, contending that Hood instead should have been sentenced to imprisonment for life without the possibility of parole. The problem is, Hood filed a timely motion for new trial, his motion was pending when the State filed its notice of appeal, and as far as we know, his motion still is pending today.

At this point, the State’s notice of appeal has not yet ripened, and the trial court retains jurisdiction to dispose of the motion for new trial. See Housing Auth. of City of Atlanta v. Geter, 252 Ga. 196, 197 (312 SE2d 309) (1984). If the motion for new trial is granted, the judgment from which the State now seeks to appeal will be set aside, and the notice of appeal previously filed by the State will be rendered moot, although the State might then, of course, file another notice of *665 appeal to exercise its statutory prerogative to appeal from the grant of a new trial. See OCGA § 5-7-1 et seq. If the motion for new trial is denied, the judgment from which the State now seeks to appeal will stand, and the notice of appeal previously filed by the State then will ripen. See, e.g., Heard v. State, 274 Ga. 196, 197 (1), n. 2 (552 SE2d 818) (2001); Miller v. State, 273 Ga. 831, n. 1 (546 SE2d 524) (2001); Hann v. State, 292 Ga. App. 719, 720 (1) (665 SE2d 731) (2008); Hearst v. State, 212 Ga. App. 492, 494 (2) (441 SE2d 914) (1994); O’Kelly v. State, 196 Ga. App. 860 (1) (397 SE2d 197) (1990); Hope v. State, 193 Ga. App. 202, 203 (1) (a) (387 SE2d 414) (1989). In the meantime, however, this case properly remains within the jurisdiction of the trial court. Accordingly, the appeal is dismissed. *

Appeal dismissed.