512 S.E.2d 711 | Ga. Ct. App. | 1999
We granted Reuben Wells’s application for discretionary appeal to consider whether the trial court properly dismissed his “Motion to Set Aside Revocation of Probation and, in the Alternative, Motion for New Triál.” Because the trial court incorrectly concluded that OCGA § 5-6-35 barred the filing of such a motion, we vacate the order and remand for further proceedings consistent with this opinion.
In the trial court’s order, it correctly noted that the discretionary appeal procedures apply to an order revoking probation, see OCGA § 5-6-35 (a) (5), and that under subsection (b) all appeals from such orders shall be by application. But the trial court erred in holding that, as a result, a discretionary appeal is the exclusive method of seeking reconsideration or review of orders and judgments enumerated in that section, barring any motion to set aside or for new trial.
OCGA § 5-6-35 itself contemplates that a motion for new trial may be filed before discretionary application is made: “When a motion for new trial. . . has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” OCGA § 5-6-35 (d). OCGA § 5-6-35 in and of itself, therefore, does not foreclose the filing of a motion for new trial.
A motion for new trial properly could be filed under the circumstances existing here. A hearing was held, witnesses testified, exhibits were introduced, and counsel made objections and arguments to the trial court. In other words, the nature of the hearing was such that statutory grounds for new trial could be and were alleged. See, e.g., OCGA §§ 5-5-22; 5-5-25.
Finally, this court has considered appeal of a probation modification and revocation brought after a motion for new trial was filed and denied in the trial court. Abney v. State, 170 Ga. App. 265 (316 SE2d 845) (1984). Abney predates the inclusion of probation revocation within the discretionary appeal procedures of OCGA § 5-6-35; see Gazaway v. State, 178 Ga. App. 318 (343 SE2d 135) (1986). But the case remains pertinent to show that a motion for new trial may be filed with respect to a probation revocation.
Consequently, we must vacate the judgment in this case and remand to the trial court for consideration of Wells’s motion to set aside or in the alternative for new trial. In taking this position, we express no opinion on the merits of Wells’s motion.
The clerk of this court will remove this appeal from the appellate docket and remand it to the trial court. If the trial court denies Wells’s motion, he may, within 30 days of the trial court’s ruling, file an application in accordance with the discretionary appeal procedures of OCGA § 5-6-35.
Judgment vacated and case remanded with direction.
This court has also considered a discretionary appeal, as required by OCGA § 5-6-35 (a) (2), in a petition for modification of an existing child custody order after denial of a motion for new trial. See, e.g., McGowan v. McGowan, 231 Ga. App. 362 (498 SE2d 574) (1998) (physical precedent only).