Opinion
68775.
DECIDED OCTOBER 5, 1984. REHEARING DENIED OCTOBER 16, 1984.
Motion for new trial. Floyd Superior Court. Before Judge Walther.
James C. Wyatt, for appellant.
F. Larry Salmon, District Attorney, William Boggs, Assistant District Attorney, for appellee.
Appellant was convicted of two counts of armed robbery on May 11, 1983, and his conviction was affirmed by this court. Chester v. State, 169 Ga. App. 854 ( 315 S.E.2d 56) (1984). On February 2, 1984 appellant filed an Extraordinary Motion for New Trial; the motion was denied and Chester appeals.
1. Appellant contends the trial court erred by denying his Extraordinary Motion for New Trial based solely on the affidavits and certified court records attached to the motion. This enumeration is without merit.
On the hearing of an extraordinary motion for a new trial, testimony in the form of an affidavit or oral testimony may be received by the court in its discretion. Herrin v. State, 71 Ga. App. 384, 386 (1) (b) ( 31 S.E.2d 124) (1944); Huffaker v. State, 122 Ga. App. 773, 774 ( 178 S.E.2d 718) (1970); Castell v. State, 250 Ga. 776, 792 (11) ( 301 S.E.2d 234) (1983). When the trial judge passes upon the grounds of an extraordinary motion for new trial he occupies the position of a trier of fact, and his discretion in refusing the motion will not be disturbed unless manifestly abused. Cade v. State, 107 Ga. App. 30 (1) ( 129 S.E.2d 405) (1962). With the exception of the fact that James Young, a co-indictee with appellant on an armed robbery charge in a different county, had his charges dismissed subsequent to appellant's trial, all of the "newly discovered" evidence was known to appellant at the time of his trial and was intentionally withheld as a matter of trial strategy. Accordingly, we find no abuse of discretion, either in deciding the motion on affidavits and records only, or in denying appellant's motion.
2. For the reasons set forth in Division 1, together with the fact that appellant was afforded the opportunity to present additional affidavits and did not do so, appellant's second enumeration of error is without merit.
Judgment affirmed. McMurray, C. J., and Deen, P. J., concur.