Murder. Clarke Superior Court. Before Judge Sweat.
Kenneth W. Mauldin , District Attorney, Jon R. Forwood , David T. Lock , Assistant District Attorneys, for appellant.
Edward H. Brumby, Jr., for appellee.
Gary D. Bergman , Ashley Wright , Denise D. Fachini , District Attorneys, Elizabeth A. Brandenburg , Sam D. Dennis, amici curiae.
James Hood was tried by a Clarke County jury, convicted of murder and several other crimes, and sentenced for the murder to a term of imprisonment for life with the possibility of parole. The State appeals, contending that Hood instead should have been sentenced to imprisonment for life without the possibility of parole. The problem is, Hood filed a timely motion for new trial, his motion was pending when the State filed its notice of appeal, and as far as we know, his motion still is pending today.
At this point, the State's notice of appeal has not yet ripened, and the trial court retains jurisdiction to dispose of the motion for new trial. See Housing Auth. of City of Atlanta v. Geter, 252 Ga. 196, 197 (312 S.E.2d 309) (1984). If the motion for new trial is granted, the judgment from which the State now seeks to appeal will be set aside, and the notice of appeal previously filed by the State will be rendered moot, although the State might then, of course, file another notice of [295 Ga. 665] appeal to exercise its statutory prerogative to appeal from the grant of a new trial. See OCGA § 5-7-1 et seq. If the motion for new trial is denied, the judgment from which the State now seeks to appeal will stand, and the notice of appeal previously filed by the State
then will ripen. See, e.g., Heard v. State, 274 Ga. 196, 197 (1), n. 2 (552 S.E.2d 818) (2001); Miller v. State, 273 Ga. 831, n. 1 (546 S.E.2d 524) (2001); Hann v. State, 292 Ga.App. 719, 720 (1) (665 S.E.2d 731) (2008); Hearst v. State, 212 Ga.App. 492, 494 (2) (441 S.E.2d 914) (1994); O'Kelly v. State, 196 Ga.App. 860 (1) (397 S.E.2d 197) (1990); Hope v. State, 193 Ga.App. 202, 203 (1) (a) (387 S.E.2d 414) (1989). In the meantime, however, this case properly remains within the jurisdiction of the trial court. Accordingly, the appeal is dismissed.[*]
All the Justices concur.