Bohannon v. State

425 S.E.2d 653, 262 Ga. 697

Opinion

Hunt, Presiding Justice.

We granted certiorari to the Court of Appeals in Bohannon v. State, 203 Ga. App. 783 (417 SE2d 679) (1992). The judgment of the Court of Appeals is reversed because the record shows that the trial court granted an out-of-time appeal and, consequently, this case is not subject to the rules governing extraordinary motions for new trial; that is, no application for appeal was required. We disagree with the Court of Appeals that by seeking (and obtaining) permission to file an out-of-time motion for new trial rather than an out-of-time appeal, Bohannon was necessarily pursuing an extraordinary motion for new trial. Likewise, we attach no significance to the fact that the trial court’s permission was oral, not written, since that court in fact heard and denied the motion on its merits. Therefore, the case is remanded to the Court of Appeals for a decision on the merits.

Judgment reversed and remanded.

Clarke, C. J., Benham, Fletcher, Sears-Collins and Hunstein, JJ., concur. David McDade, District Attorney, for appellee.