Ogburn v. State

529 S.E.2d 438, 242 Ga. App. 449, 2000 Fulton County D. Rep. 1038, 2000 Ga. App. LEXIS 175

Opinion

McMurray, Presiding Judge.

Defendant Ogburn was tried before a jury and acquitted of simple battery. Defendant later filed a motion for correction of judgment and/or modification of the record in an attempt to set aside the earlier denial of his motion for directed verdict of acquittal — which defendant alleged impaired his ability to pursue a malicious prosecution claim. See Monroe v. Sigler, 256 Ga. 759, 761 (6) (353 SE2d 23). These appeals followed the denial of this motion.

* Held:

Decided February 10, 2000 — Reconsideration denied February 22,2000 William L. Ogbum, pro se. Gwendolyn R. Keyes, Solicitor, D. Max Hirsh, Pilar Gigante, Assistant Solicitors, for appellee.

Defendant’s motion for correction of judgment and/or modification of the record does not seek to modify, set aside, or otherwise change the impact of the jury’s verdict finding defendant not guilty of simple battery. This motion’s only intent was to fortify defendant’s alleged rights in a future action for malicious prosecution. The trial court, however, was without authority to provide such relief.

Trial courts generally do not have authority to provide advisory opinions as to which party would prevail on the merits in future litigation absent an immediate need for judicial guidance to avoid additional liability or jeopardizing rights. See Oxford Finance Co. v. Dennis, 185 Ga. App. 177 (363 SE2d 614). Since, in the case sub judice, defendant was merely seeking advice as to which party would prevail on the merits in such future litigation, the trial court did not err in denying defendant’s motion for correction of judgment and/or modification of the record.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

Although Case Nos. A00A0215 and A00A0411 are appeals from this same order, Case No. A99A0411 is a discretionary appeal which this Court was required to grant under OCGA § 5-6-35 (j). Since the record in Case No. A00A0215 is necessary for resolution of Case No. A00A041Í, we hereby consolidate these appeals and deny defendant’s notice of dismissal of Case No. A00A0215.