BROWN v. STATE

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Docket Number

A93A0791.

Attorney(S)

Gerald P. Privin, Odessa P. Thompson, for appellant. James Brown, Jr., pro se. Robert E. Keller, District Attorney, Gina C. Naugle, Assistant. District Attorney, for appellee.

Judges

BLACKBURN, Judge.

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Smart Summary

Factual and Procedural Background

James Brown, Jr. was convicted by a jury of burglary and criminal attempt of burglary. Judgment was entered on June 15, 1992. He filed a pro se notice of appeal on June 18, 1992, and later filed a document captioned as a motion for transcript that asserted grounds for a new trial. A separately dated motion for new trial was filed on July 17, 1992. The trial court granted a new trial on December 22, 1992, and the appeal was docketed on January 7, 1993. [1]

Legal Issues Presented

Whether the Court of Appeals had jurisdiction when the appellant filed both a notice of appeal and a motion for new trial. [2]
Whether the document captioned as a motion for transcript should be treated as a timely motion for new trial based on its contents. [3][4]
Whether the appeal was premature after the trial court granted a new trial. [5]

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Kelly v. State, 196 Ga. App. 860 (397 S.E.2d 197) (1990)	A timely notice of appeal filed before a timely motion for new trial is premature until the motion is resolved.	The court applied this rule to treat the notice of appeal as premature and to dismiss the appeal after the new trial was granted. [2][5]
Atkinson v. State, 170 Ga. App. 260 (1) (316 S.E.2d 592) (1984)	The opinion cites this decision as a contrasting authority.	The court noted, but did not explain further, the comparison with Atkinson. [2]
Johnson v. State, 227 Ga. 219 (180 S.E.2d 94) (1971)	An untimely motion for new trial is void.	The court held that the motion filed on July 17, 1992, was untimely and therefore void as a motion for new trial. [3]
Marshall v. State, 229 Ga. 841 (195 S.E.2d 12) (1972)	There is no controlling significance in the nomenclature used to describe pleadings.	The court relied on this principle in looking beyond the document's caption. [4]
Bell v. Figueredo, 259 Ga. 321 (381 S.E.2d 29) (1989)	Pleadings are construed according to their function and in the pleader's best interests rather than by their labels.	The court classified the pro se motion for transcript as a combined motion for new trial and motion for transcript because it asserted grounds for a new trial. [4]

Court's Reasoning and Analysis

The court first addressed jurisdiction because both a notice of appeal and a motion for new trial had been filed. Under the cited rule, a notice of appeal filed before a timely motion for new trial becomes premature pending disposition of that motion. [2]

The separately filed motion for new trial, filed on July 17, 1992, was untimely and void. However, the June 30 motion for transcript was filed within 30 days after judgment and expressly asserted several grounds for a new trial. [3]

Applying the rule that pleadings are judged by their function rather than their labels, the court treated the June 30 document as a combined motion for new trial and motion for transcript. [4]

Because the notice of appeal and the properly construed motion for new trial were timely, the notice was premature. The trial court's grant of a new trial left nothing for the Court of Appeals to review, requiring dismissal. [5]

Holding and Implications

APPEAL DISMISSED. The Court of Appeals dismissed the appeal as premature because the trial court had granted a new trial, leaving no issue for appellate review. [5][6]

The direct effect was that the appeal did not proceed to review of the burglary convictions. The opinion did not set a new precedent.

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BROWN v. THE STATE.

BLACKBURN, Judge.

The appellant, James Brown, Jr., was tried and convicted of burglary and criminal attempt of burglary. Judgment was entered on that jury verdict on June 15, 1992, and the appellant filed a pro se notice of appeal on June 18, 1992. On June 30, 1992, he filed a document captioned as a motion for transcript, in which he asserted several grounds for a new trial. A motion for new trial dated June 19, 1992, was filed in the trial court on July 17, 1992. The trial court granted the appellant a new trial on December 22, 1992. This appeal was docketed with this court on January 7, 1993.

Initially, we address the issue of our jurisdiction in this case, since both a notice of appeal and motion for new trial were filed by the appellant. Where a notice of appeal and a motion for new trial are timely filed, even though the former precedes the latter, the notice of appeal is rendered premature until disposition of the motion for new trial. O'Kelly v. State, 196 Ga. App. 860 ( 397 S.E.2d 197) (1990); but compare Atkinson v. State, 170 Ga. App. 260 (1) ( 316 S.E.2d 592) (1984).

In the instant case, the appellant's motion that was filed on July 17, 1992, was untimely, and therefore void, as a motion for new trial. Johnson v. State, 227 Ga. 219 ( 180 S.E.2d 94) (1971). However, his motion for transcript filed on June 30, 1992, which referred to his motion for new trial and asserted several grounds for new trial, was filed within 30 days of the entry of judgment on the jury verdict.

"[T]here is no magic in mere nomenclature, even in describing pleadings." Marshall v. State, 229 Ga. 841 ( 195 S.E.2d 12) (1972). Pleadings are construed to serve the best interests of the pleader, and are judged by function rather than name. Bell v. Figueredo, 259 Ga. 321 ( 381 S.E.2d 29) (1989). Although the pro se appellant designated the pleadings filed on June 30, 1992, as a motion for transcript, that motion asserted grounds for new trial. Considering the contents of that motion, the pleading functioned as a combined motion for new trial and motion for transcript, and we will classify it as such.

Inasmuch as the appellant's notice of appeal and motion for new trial were both filed timely, the notice of appeal must be considered as premature, pending disposition of the motion for new trial. O'Kelly v. State, supra. Further, in light of the trial court's grant of the appellant's motion for new trial, this appeal remains premature and must be dismissed, as there is nothing for this court to review.

Appeal dismissed. Johnson and Smith, JJ., concur.

DECIDED MAY 25, 1993.