Pate v. State

Court of Appeals of Georgia

Pate v. State

665 S.E.2d 907, 292 Ga. App. 815, 2008 Fulton County D. Rep. 2687, 2008 Ga. App. LEXIS 869

CourtCourt of Appeals of Georgia

DecidedJuly 18, 2008

DocketA08A1259

StatusPublished

Cited by1 cases

This text of 665 S.E.2d 907 (Pate v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pate v. State, 665 S.E.2d 907, 292 Ga. App. 815, 2008 Fulton County D. Rep. 2687, 2008 Ga. App. LEXIS 869 (Ga. Ct. App. 2008).

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Opinion

JOHNSON, Presiding Judge.

In November 2001, Barry Pate was convicted of three counts of aggravated sexual battery and other offenses. 1 On November 1, 2007, Pate filed a pro se motion pursuant to OCGA § 5-5-41 (c), seeking DNA testing of a latex glove introduced into evidence at his trial. He also filed a written request for a hearing on the motion. The following day, November 2, 2007, the trial court entered an order denying the motion. Pate appeals.

OCGA § 5-5-41 (c) provides the grounds for filing an extraordinary motion for new trial seeking the performance of DNA testing. Paragraphs (3) and (4) of that subsection set forth various requirements for such a motion, and if those requirements are met, the trial court shall order a hearing. 2 Furthermore, “subsection (c) (12) provides that the judge shall set forth by written order the rationale for the grant or denial of the motion for new trial filed pursuant to this subsection.” 3

In the instant case, the day after Pate filed his motion, the trial court simply denied it without explanation. The court made no *816 determination as to whether Pate is entitled to a hearing on the motion, and it did not set forth any rationale for denying the motion. We therefore vacate the trial court’s order denying Pate’s request for DNA testing and remand the case to the trial court with direction that it determine whether or not Pate is entitled to a hearing, and that it enter a written order setting forth its rationale for either granting or denying the motion. 4

Decided July 18, 2008. Barry Pate, pro se. T. Joseph Campbell, District Attorney, for appellee.

Order vacated and case remanded with direction.

Barnes, C. J., and Phipps, J., concur.

1

Pate v. State, 269 Ga. App. 684 (605 SE2d 90) (2004).

2

OCGA § 5-5-41 (c) (6) (A).

3

(Citation omitted; emphasis in original.) Johnson v. State, 272 Ga. App. 294, 295-296 (4) (b) (612 SE2d 29) (2005).

4

See id. at 296 (4) (b).

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JOHNSON, Presiding Judge.

In November 2001, Barry Pate was convicted of three counts of aggravated sexual battery and other offenses. 1 On November 1, 2007, Pate filed a pro se motion pursuant to OCGA § 5-5-41 (c), seeking DNA testing of a latex glove introduced into evidence at his trial. He also filed a written request for a hearing on the motion. The following day, November 2, 2007, the trial court entered an order denying the motion. Pate appeals.

OCGA § 5-5-41 (c) provides the grounds for filing an extraordinary motion for new trial seeking the performance of DNA testing. Paragraphs (3) and (4) of that subsection set forth various requirements for such a motion, and if those requirements are met, the trial court shall order a hearing. 2 Furthermore, “subsection (c) (12) provides that the judge shall set forth by written order the rationale for the grant or denial of the motion for new trial filed pursuant to this subsection.” 3

In the instant case, the day after Pate filed his motion, the trial court simply denied it without explanation. The court made no *816 determination as to whether Pate is entitled to a hearing on the motion, and it did not set forth any rationale for denying the motion. We therefore vacate the trial court’s order denying Pate’s request for DNA testing and remand the case to the trial court with direction that it determine whether or not Pate is entitled to a hearing, and that it enter a written order setting forth its rationale for either granting or denying the motion. 4

Decided July 18, 2008. Barry Pate, pro se. T. Joseph Campbell, District Attorney, for appellee.

Order vacated and case remanded with direction.

Barnes, C. J., and Phipps, J., concur.

1

Pate v. State, 269 Ga. App. 684 (605 SE2d 90) (2004).

2

OCGA § 5-5-41 (c) (6) (A).

3

(Citation omitted; emphasis in original.) Johnson v. State, 272 Ga. App. 294, 295-296 (4) (b) (612 SE2d 29) (2005).

4

See id. at 296 (4) (b).

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665 S.E.2d 907, 292 Ga. App. 815, 2008 Fulton County D. Rep. 2687, 2008 Ga. App. LEXIS 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pate-v-state-gactapp-2008.

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