Smith v. State

Full title: SMITH v. THE STATE

Court: Court of Appeals of Georgia

Date published: Feb 22, 2000

242 Ga. App. 459 (Ga. Ct. App. 2000)

530 S.E.2d 223

Opinion

A99A1978.

DECIDED FEBRUARY 22, 2000.

Motion for discharge and acquittal. Fulton Superior Court. Before Judge Long.

Johnson, Prioleau Kenison, Theodore Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

MILLER, Judge.

Craig V. Smith was tried before a jury and found guilty of robbery, armed robbery, hijacking a motor vehicle, and aggravated assault. On direct appeal, he was granted a new trial due to an "illegally constituted jury."¹ At a hearing on January 26, 1999, Smith moved for discharge and acquittal under OCGA § 17-7-171 (b). The court twice orally denied Smith's motion, once on January 26 and again on February 2. On February 5, he filed a notice of appeal from the January 26 denial. He later filed an "Amended" notice of appeal from the court's February 2 denial. But "[i]t is elementary that an oral order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk."² Because both notices of appeal are from unappealable oral orders, we dismiss the appeal in Case Number A99A1978 and remand the case to give the trial court the opportunity to enter a written order on Smith's motion for discharge and acquittal within ten days of receipt of the remittitur.

1 Smith v. State, 232 Ga. App. 458, 460-461 (1) ( 501 S.E.2d 622) (1998).

2 Sharp v. State, 183 Ga. App. 641, 642 (1) ( 360 S.E.2d 50) (1987) (citations omitted); see OCGA § 5-6-31.

Appeal dismissed and case remanded with direction. Pope, P.J., and Smith, J., concur.

MILLER, Judge.

DECIDED FEBRUARY 22, 2000.