Kurtz v. State

155 S.E.2d 735, 115 Ga. App. 665, 1967 Ga. App. LEXIS 1202

• Court: Court of Appeals of Georgia
• Decided: April 27, 1967
• Docket: 42626, 42657
• Status: Published

Opinion

Pannell, Judge.

1. The notice of appeal in case No. 42626 was filed on the same day a motion for new trial was filed by appellant, December 8, 1966. An appeal from the judgment on the verdict brought while the case is pending on motion for new trial is premature and should be dismissed. See State Bank of Leesburg v. Hatcher, 106 Ga. App. 735 (128 SE2d 339). And such appeal is not brought to maturity or perfected by the subsequent overruling of the motion for new trial. However, if we should assume that the appeal was filed before the motion for new trial and assume further that this would not make the appeal premature, we are faced with the additional fact that the transcript of the evidence was not filed with the clerk of the lower court until January 13, 1967, more than 30 days after the notice of appeal was filed, which under Davis v. Davis, 222 Ga. 579 (151 SE2d 123) also requires a dismissal. Appeal in case No. 42626 dismissed.

Bell, P. J., and Jordan, J., concur. Submitted March 7, 1967 Decided April 27, 1967. Terence Kurtz, pro se, Jackson Cook, for appellant. Richard Bell, Solicitor General, for appellee.

2. Another notice of appeal from a judgment of conviction and sentence was filed on January 25, 1967 (case No. 42657), after the overruling of the motion for new trial on January 16, 1967. The record was filed in this court on January 27, 1967. The enumeration of errors was filed on February 7, 1967. The enumeration of errors not having been filed within 10 days as required by law, this appeal in case No. 42657 must be dismissed. Yost v. Gunby, 221 Ga. 552 (145 SE2d 575); Undercofler v. McLennan, 221 Ga. 613 (146 SE2d 635).

Appeals dismissed.