2020 Georgia Code
Title 5 - Appeal and Error
Chapter 5 - New Trial
Article 3 - Procedure
§ 5-5-41. Requirements as to Extraordinary Motions for New Trial Generally; Notice of Filing of Motion; Limitations as to Number of Extraordinary Motions in Criminal Cases; Dna Testing

Universal Citation: GA Code § 5-5-41 (2020)
  1. When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court. In all such cases, 20 days' notice shall be given to the opposite party.
  2. Whenever a motion for a new trial has been made within the 30 day period in any criminal case and overruled or when a motion for a new trial has not been made during such period, no motion for a new trial from the same verdict or judgment shall be made or received unless the same is an extraordinary motion or case; and only one such extraordinary motion shall be made or allowed.
    1. Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case for the performance of forensic deoxyribonucleic acid (DNA) testing.
    2. The filing of the motion as provided in paragraph (1) of this subsection shall not automatically stay an execution.
    3. The motion shall be verified by the petitioner and shall show or provide the following:
      1. Evidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction;
      2. The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner's trial attorney prior to trial or because the technology for the testing was not available at the time of trial;
      3. The identity of the perpetrator was, or should have been, a significant issue in the case;
      4. The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case;
      5. A description of the evidence to be tested and, if known, its present location, its origin and the date, time, and means of its original collection;
      6. The results of any DNA or other biological evidence testing that was conducted previously by either the prosecution or the defense, if known;
      7. If known, the names, addresses, and telephone numbers of all persons or entities who are known or believed to have possession of any evidence described by subparagraphs (A) through (F) of this paragraph, and any persons or entities who have provided any of the information contained in petitioner's motion, indicating which person or entity has which items of evidence or information; and
      8. The names, addresses, and telephone numbers of all persons or entities who may testify for the petitioner and a description of the subject matter and summary of the facts to which each person or entity may testify.
    4. The petitioner shall state:
      1. That the motion is not filed for the purpose of delay; and
      2. That the issue was not raised by the petitioner or the requested DNA testing was not ordered in a prior proceeding in the courts of this state or the United States.
    5. The motion shall be served upon the district attorney and the Attorney General. The state shall file its response, if any, within 60 days of being served with the motion. The state shall be given notice and an opportunity to respond at any hearing conducted pursuant to this subsection.
      1. If, after the state files its response, if any, and the court determines that the motion complies with the requirements of paragraphs (3) and (4) of this subsection, the court shall order a hearing to occur after the state has filed its response, but not more than 90 days from the date the motion was filed.
      2. The motion shall be heard by the judge who conducted the trial that resulted in the petitioner's conviction unless the presiding judge determines that the trial judge is unavailable.
      3. Upon request of either party, the court may order, in the interest of justice, that the petitioner be at the hearing on the motion. The court may receive additional memoranda of law or evidence from the parties for up to 30 days after the hearing.
      4. The petitioner and the state may present evidence by sworn and notarized affidavits or testimony; provided, however, any affidavit shall be served on the opposing party at least 15 days prior to the hearing.
      5. The purpose of the hearing shall be to allow the parties to be heard on the issue of whether the petitioner's motion complies with the requirements of paragraphs (3) and (4) of this subsection, whether upon consideration of all of the evidence there is a reasonable probability that the verdict would have been different if the results of the requested DNA testing had been available at the time of trial, and whether the requirements of paragraph (7) of this subsection have been established.
    6. The court shall grant the motion for DNA testing if it determines that the petitioner has met the requirements set forth in paragraphs (3) and (4) of this subsection and that all of the following have been established:
      1. The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;
      2. The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;
      3. The evidence was not tested previously or, if tested previously, the requested DNA test would provide results that are reasonably more discriminating or probative of the identity of the perpetrator than prior test results;
      4. The motion is not made for the purpose of delay;
      5. The identity of the perpetrator of the crime was a significant issue in the case;
      6. The testing requested employs a scientific method that has reached a scientific state of verifiable certainty such that the procedure rests upon the laws of nature; and
      7. The petitioner has made a prima facie showing that the evidence sought to be tested is material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime, aggravating circumstance, or similar transaction that resulted in the conviction.
    7. If the court orders testing pursuant to this subsection, the court shall determine the method of testing and responsibility for payment for the cost of testing, if necessary, and may require the petitioner to pay the costs of testing if the court determines that the petitioner has the ability to pay. If the petitioner is indigent, the cost shall be paid from the fine and bond forfeiture fund as provided in Article 3 of Chapter 21 of Title 15.
    8. If the court orders testing pursuant to this subsection, the court shall order that the evidence be tested by the Division of Forensic Sciences of the Georgia Bureau of Investigation. In addition, the court may also authorize the testing of the evidence by a laboratory that meets the standards of the DNA advisory board established pursuant to the DNA Identification Act of 1994, Section 14131 of Title 42 of the United States Code, to conduct the testing. The court shall order that a sample of the petitioner's DNA be submitted to the Division of Forensic Sciences of the Georgia Bureau of Investigation and that the DNA analysis be stored and maintained by the bureau in the DNA data bank.
    9. If a motion is filed pursuant to this subsection the court shall order the state to preserve during the pendency of the proceeding all evidence that contains biological material, including, but not limited to, stains, fluids, or hair samples in the state's possession or control.
    10. The result of any test ordered under this subsection shall be fully disclosed to the petitioner, the district attorney, and the Attorney General.
    11. 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.
    12. The petitioner or the state may appeal an order, decision, or judgment rendered pursuant to this Code section.

(Orig. Code 1863, § 3645; Code 1868, § 3670; Ga. L. 1873, p. 47, § 1; Code 1873, § 3721; Code 1882, § 3721; Civil Code 1895, § 5487; Penal Code 1895, § 1064; Civil Code 1910, § 6092; Penal Code 1910, § 1091; Code 1933, § 70-303; Ga. L. 2003, p. 247, § 1; Ga. L. 2011, p. 264, § 1-2/SB 80; Ga. L. 2012, p. 775, § 5/HB 942; Ga. L. 2015, p. 693, § 3-4/HB 233.)

The 2011 amendment, effective May 11, 2011, deleted "serious violent" and "as defined in Code Section 17-10-6.1" preceding and following "felony" in paragraph (c)(1).

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (c)(1).

The 2015 amendment, effective July 1, 2015, substituted "fine and bond forfeiture fund as provided in Article 3 of Chapter 21" for "fine and forfeiture fund as provided in Article 3 of Chapter 5" at the end of paragraph (c)(8). See Editor's notes for applicability.

Cross references.

- Granting of new trial based on newly discovered evidence, § 5-5-23.

Extensions of time for filing of motions for new trial, § 9-11-6.

Editor's notes.

- Ga. L. 2003, p. 247, § 5, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. Notwithstanding the provisions of subsection (b) of Code Section 5-5-41, any person convicted of a serious violent felony as defined in Code Section 17-10-6.1, which conviction was imposed prior to the effective date of this Act, who has, prior to the effective date of this Act, filed an extraordinary motion for new trial, may file an extraordinary motion for new trial pursuant to Section 1 of this Act if the issue of DNA testing was not raised or denied in the prior extraordinary motion for new trial. In any extraordinary motion for new trial allowed pursuant to Section 1 of this Act, the court shall not have jurisdiction to reconsider any other issue raised in the first extraordinary motion for new trial. Notwithstanding the provisions of subparagraph (c)(4)(B) of Code Section 5-5-41, any person convicted of a serious violent felony as defined in Code Section 17-10-6.1, which conviction was imposed prior to the effective date of this Act, who has, prior to the effective date of this Act, previously litigated in a court of this state or the United States the issue of postconviction DNA testing and who was denied DNA testing may file an extraordinary motion for new trial pursuant to Section 1 of this Act." This Act became effective May 27, 2003.

Ga. L. 2011, p. 264, § 1-1/SB 80, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Johnia Berry Act.'"

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

Law reviews.

- For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 119 (2003). For note, "Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony," see 46 Ga. L. Rev. 213 (2011). For comment on Williams v. Georgia, 24 U.S.L.W. 3191 (Jan. 17, 1956), discussing whether a challenge to the entire panel could be raised by an extraordinary motion for new trial, see 18 Ga. B.J. 350 (1956).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Trial Court's Discretion
  • Extraordinary Motions Based on Newly Discovered Evidence
  • Application
General Consideration

Extraordinary motions are authorized indirectly by O.C.G.A. §§ 5-5-40 and5-5-41. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Motion for new trial made more than 30 days after entry of judgment is an extraordinary motion. Dyal v. State, 121 Ga. App. 50, 172 S.E.2d 326 (1970).

Common law right.

- Right to grant new trials upon extraordinary grounds was recognized at common law. Hudgins v. Veal, 98 Ga. 137, 26 S.E. 479 (1896).

Extraordinary motion for new trial is in nature of a bill in equity. Bivins v. McDonald, 50 Ga. App. 299, 177 S.E. 829 (1934).

Right to grant new trials upon extraordinary grounds was intended to replace bills in equity for new trials, and motion must state grounds upon which it is based. East Tenn. v. & Ga. R.R. v. Whitlock, 75 Ga. 77 (1885); Cox v. State, 19 Ga. App. 283, 91 S.E. 422 (1917).

Probate court cannot entertain motion.

- Only superior and city courts may grant new trials, and court of ordinary (now probate court) has no jurisdiction to entertain motion or extraordinary motion for new trial. Byrd v. Riggs, 210 Ga. 473, 80 S.E.2d 785 (1954).

Bases for granting an extraordinary motion are much stricter than a normal motion. Gordon v. State, 193 Ga. App. 94, 387 S.E.2d 40 (1989).

Good reason must be shown to justify motion made after time prescribed.

- Motion for new trial made after time permitted by former Code 1933, § 70-301 (see O.C.G.A. § 5-5-40) could not be entertained unless some good reason be shown why motion was not made within time required, which reason shall be judged of by court. Union Life Ins. Co. v. Aaronson, 109 Ga. App. 384, 136 S.E.2d 142 (1964).

In any case when motion for new trial is made more than 30 days after entry of judgment on the verdict, some good reason must be shown why the motion was not made within time allowed by law. Brawner v. Wilkins, 114 Ga. App. 263, 150 S.E.2d 721 (1966).

Defendant's motion for new trial filed more than 30 days after the entry of judgment was untimely under O.C.G.A. § 5-5-40(a), void, and did not toll the 30-day time to file a notice of appeal provided by O.C.G.A. § 5-6-38(a). Because the defendant failed to show good cause for the untimely motion, it could not be construed as an extraordinary motion under O.C.G.A. § 5-5-41(b), and even if it were so construed, the defendant did not follow the discretionary appeal procedure of O.C.G.A. § 5-6-35. Davis v. State, 330 Ga. App. 711, 769 S.E.2d 133 (2015).

Extraordinary motions for new trial are not favored by courts. Hays v. Westbrook, 96 Ga. 219, 22 S.E. 893 (1895); Baskin v. State, 43 Ga. App. 760, 160 S.E. 539 (1931); Allen v. State, 88 Ga. App. 200, 76 S.E.2d 531 (1953); Cade v. State, 107 Ga. App. 30, 129 S.E.2d 405 (1962); Patterson v. State, 228 Ga. 389, 185 S.E.2d 762 (1971).

Extraordinary motion for new trial is not favored, and stands upon different footing from original motion for new trial. Loomis v. Edwards, 80 Ga. App. 396, 56 S.E.2d 183 (1949), cert. denied, 339 U.S. 970, 70 S. Ct. 989, 94 L. Ed. 1377 (1950).

Motions for new trial after verdict are not favored, and extraordinary motions for new trial after final judgment are favored even less. Williams v. Georgia, 349 U.S. 375, 75 S. Ct. 814, 99 L. Ed. 1161 (1955), cert. denied, 350 U.S. 950, 76 S. Ct. 326, 100 L. Ed. 828 (1956).

Extraordinary motion for new trial institutes an entirely new case, requiring discretionary action on the part of the judge having jurisdiction thereof to bring the motion into actual existence as a cause in the courts. Bivins v. McDonald, 50 Ga. App. 299, 177 S.E. 829 (1934).

Motion does not lie to correct errors in judgments or decrees.

- If plaintiff in error relies on so-called extraordinary motion for new trial as proper procedure to vacate and set aside existing judgments, the plaintiff is confronted with the rule that motion for new trial is not proper remedy to correct alleged error in any judgment or decree entered by the trial court and the plaintiff's motion will be denied. Ballard v. Harmon, 202 Ga. 603, 44 S.E.2d 260 (1947).

Right to extraordinary motion not affected by appellate court decision on grounds of previous motion.

- Any rights that movant has to proceed in trial of extraordinary motion for new trial are not lost by decision of appellate court as to grounds set forth in previous motion for new trial. Williams v. Pilcher & Dillon, 31 Ga. App. 591, 121 S.E. 581 (1924).

Exceptions to rule barring second appeal when conviction affirmed.

- Two exceptions to the general rule that when a judgment of conviction is affirmed by an appellate court, no ordinary second appeal will be allowed are an extraordinary motion for new trial and habeas corpus. Grant v. State, 159 Ga. App. 2, 282 S.E.2d 668 (1981).

Strict pleading is required in extraordinary motions for new trial in order to postpone indefinitely the execution of the sentence and allow the judge to whom it is presented to ascertain readily if a new trial is warranted based on newly discovered evidence. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Hearing required.

- Under O.C.G.A. §§ 5-5-40 and5-5-41, the trial court is required to hold a hearing on a motion for new trial. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

No hearing when motion shows no merit.

- Extraordinary motion for new trial which fails to show any merit may be denied without the necessity of a hearing. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Failure to state facts sufficient for grant of motion.

- When the pleadings in an extraordinary motion for new trial in a criminal case do not contain a statement of facts sufficient to authorize that the motion be granted if the facts developed at the hearing warrant such relief, it is not error for the trial court to refuse to conduct a hearing on the extraordinary motion. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Although defendant was not entitled to a hearing on a motion for DNA testing unless the motion complied with the requirements set forth in O.C.G.A. § 5-5-41(c)(3), (4), the trial court erred in simply denying the motion without explanation, and in failing to determine whether the defendant was entitled to a hearing on the motion, or to otherwise set forth any rationale or basis for denying the motion. Johnson v. State, 272 Ga. App. 294, 612 S.E.2d 29 (2005).

Motions for DNA testing.

- Trial court properly denied the inmate's pro se motion for DNA testing, which was filed 20 years after that inmate was convicted of aggravated sodomy and rape, as the identity of the perpetrator of the rape was not a significant issue in the case, and the inmate failed to satisfy all elements under O.C.G.A. § 5-5-41(c) to warrant that relief. Williams v. State, 289 Ga. App. 856, 658 S.E.2d 446 (2008).

Since the defendant's renewed request for DNA testing did not involve any new testing, it was not properly a request for DNA testing made pursuant to O.C.G.A. § 5-5-41(c), nor was the motion granted pursuant to that statute and, thus, it was in the nature of a post-trial discovery request. Bharadia v. State, 297 Ga. 567, 774 S.E.2d 90 (2015).

"Good reason" for motion.

- Normally, the "good reason" necessary to permit the filing of an extraordinary motion for a new trial consists of newly discovered evidence, but the late filing of a motion for a new trial may also be predicated on circumstances other than newly discovered evidence. Martin v. Children's Sesame, Inc., 188 Ga. App. 242, 372 S.E.2d 648 (1988).

Trial court did not abuse the court's discretion in concluding that the late filing of a motion was supported by "good reason" when the clerk's office incorrectly informed the movants of the filing date on two occasions and where the motion would have been timely had the clerk's representations been correct. Martin v. Children's Sesame, Inc., 188 Ga. App. 242, 372 S.E.2d 648 (1988).

Showing of good defense required.

- Both an extraordinary motion for new trial and a complaint in equity require the petitioner's showing that the petitioner has a good defense to the action at law. Saxon v. Covington, 178 Ga. App. 271, 342 S.E.2d 754 (1986).

Summary denial of motion constitutional when movant fails to follow procedure.

- Due process and equal protection rights are not violated by a trial court's summary denial of a movant's extraordinary motion for new trial when the movant fails to comply with the procedural requirements of state law. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Appeal from decision rendered on merits following granting of out-of-time motion.

- Even though the defendant did not timely file a motion for a new trial because the defendant did not file such a motion within 30 days of the entry of conviction and the imposition of sentence, the state supreme court had jurisdiction to hear the defendant's appeal as the trial court granted permission to the defendant to file an out-of-time motion for a new trial and denied that motion on the motion's merits following a hearing, and, thus, the defendant was entitled to file a direct appeal to the appropriate reviewing court. Washington v. State, 276 Ga. 655, 581 S.E.2d 518 (2003).

Appeal required dismissal due to late filed new trial motion.

- Supreme Court of Georgia dismissed the defendant's appeal because the trial court was not authorized to take any action on the defendant's late-filed and untimely motion for new trial other than dismissal since the trial court had no jurisdiction to enter the order, and the order was therefore invalid. Pounds v. State, Ga. , 846 S.E.2d 48 (2020).

Appellate jurisdiction.

- When the plaintiff filed an extraordinary motion for new trial, which the trial court denied, appellate jurisdiction existed; although no ruling on the motion was contained in the record on appeal or requested in the notice of appeal, the trial court implicitly granted permission to file the motion by expressly recognizing the plaintiff's pleading as both a request to file an out-of-time motion for new trial and as a motion for new trial, by holding an evidentiary hearing on the merits of the motion for new trial, and by denying the motion for new trial on the motion's merits. Fowler Props. v. Dowland, 282 Ga. 76, 646 S.E.2d 197 (2007).

State has right to direct appeal.

- State could directly appeal from an order granting defendant's post-conviction motion for deoxyribonucleic acid (DNA) testing by an uncertified laboratory because the defendant filed only a post-conviction motion and did not file an extraordinary motion for new trial; the trial court had ruled on the merits of the only pending motion, there was no issue remaining, and a direct appeal would not create absurd results. State v. Clark, 273 Ga. App. 411, 615 S.E.2d 143 (2005).

Cited in Doyal v. State, 73 Ga. 72 (1884); Fambles v. State, 97 Ga. 625, 25 S.E. 365 (1896); Collier v. State, 115 Ga. 17, 41 S.E. 261 (1902); Perkins v. State, 126 Ga. 578, 55 S.E. 501 (1906); Brown v. State, 141 Ga. 783, 82 S.E. 238 (1914); Crawley v. State, 151 Ga. 818, 108 S.E. 238, 18 A.L.R. 368 (1921); Donalson v. Bank of Jakin, 33 Ga. App. 428, 127 S.E. 229 (1925); Coggeshall v. Park, 162 Ga. 78, 132 S.E. 632 (1926); Federal Inv. Co. v. Ewing, 166 Ga. 246, 142 S.E. 890 (1928); Hiott v. Hiott, 173 Ga. 392, 160 S.E. 500 (1931); State Bd. of Penal Cors. v. Johnson, 190 Ga. 246, 9 S.E.2d 251 (1940); Miles v. Johnson, 193 Ga. 492, 18 S.E.2d 831 (1942); Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177 (1944); Randall v. Whitman, 88 Ga. App. 803, 78 S.E.2d 78 (1953); Fields v. Balkcom, 211 Ga. 797, 89 S.E.2d 189 (1955); Fulton v. Chattanooga Publishing Co., 100 Ga. App. 573, 112 S.E.2d 15 (1959); McRae v. State, 116 Ga. App. 407, 157 S.E.2d 646 (1967); Harris v. State, 225 Ga. 458, 169 S.E.2d 331 (1969); Hilliard v. State, 128 Ga. App. 157, 195 S.E.2d 772 (1973); Akins v. State, 237 Ga. 826, 229 S.E.2d 645 (1976); Martin v. State, 240 Ga. 488, 241 S.E.2d 246 (1978); Parker v. State, 151 Ga. App. 139, 259 S.E.2d 145 (1979); Collier v. State, 169 Ga. App. 69, 311 S.E.2d 242 (1983); Llewellyn v. State, 252 Ga. 426, 314 S.E.2d 227 (1984); Levitt v. State, 170 Ga. App. 32, 316 S.E.2d 6 (1984); Batson v. First Nat'l Bank, 170 Ga. App. 803, 318 S.E.2d 227 (1984); Knox v. State, 180 Ga. App. 564, 349 S.E.2d 753 (1986); Kindle v. State, 181 Ga. App. 52, 351 S.E.2d 461 (1986); Pittman v. State, 183 Ga. App. 12, 357 S.E.2d 855 (1987); Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987); White v. Fidelity Nat'l Bank, 188 Ga. App. 539, 373 S.E.2d 640 (1988); Cook v. Jordan Bradley Supply Co., 195 Ga. App. 604, 394 S.E.2d 400 (1990); Department of Human Resources v. Browning, 210 Ga. App. 546, 436 S.E.2d 742 (1993); Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013); Lester v. Boles, 330 Ga. App. 711, 769 S.E.2d 133 (2016).

Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016).

Trial Court's Discretion

Passing on extraordinary motion for new trial rests largely within discretion of trial judge. Pulliam v. State, 199 Ga. 709, 35 S.E.2d 250 (1945); Gilpin v. Swainsboro Ice & Fuel Co., 75 Ga. App. 574, 44 S.E.2d 168 (1947); Allen v. State, 88 Ga. App. 200, 76 S.E.2d 531 (1953); Williams v. Georgia, 349 U.S. 375, 75 S. Ct. 814, 99 L. Ed. 1161 (1955), cert. denied, 350 U.S. 950, 76 S. Ct. 326, 100 L. Ed. 828 (1956).

Discretion of judge was not unlike that exercised in motions under former Code 1933, § 70-301 (see O.C.G.A. § 5-5-40), and this discretion must be exercised as to whether good reason is shown why motion was not made during term. Slusser v. Williams, 100 Ga. App. 599, 112 S.E.2d 7 (1959).

Refusal of extraordinary motion for new trial not disturbed absent manifest abuse of discretion. Dixon v. Mutual Life Indus. Ass'n, 3 Ga. App. 524, 60 S.E. 207 (1908); Pulliam v. State, 199 Ga. 709, 35 S.E.2d 250 (1945); Gilpin v. Swainsboro Ice & Fuel Co., 75 Ga. App. 574, 44 S.E.2d 168 (1947); Allen v. State, 88 Ga. App. 200, 76 S.E.2d 531 (1953); Williams v. Georgia, 349 U.S. 375, 75 S. Ct. 814, 99 L. Ed. 1161 (1955), cert. denied, 350 U.S. 950, 76 S. Ct. 326, 100 L. Ed. 828 (1956); Cade v. State, 107 Ga. App. 30, 129 S.E.2d 405 (1962).

Appellate court will remand case where trial judge failed to exercise discretion regarding extraordinary motion. Central of Ga. Ry. v. O'Kelley, 16 Ga. App. 594, 85 S.E. 938 (1915).

Trial judge acts as trier of fact in passing upon grounds of motion.

- When verdict is attacked in a motion for new trial because of the prejudice of a juror, and issue is formed by evidence introduced by parties upon motion, judge is trier, and, unless there is an abuse of discretion, the judge's finding against the movant and in favor of impartiality of the juror is to be treated as final. Baskin v. State, 43 Ga. App. 760, 160 S.E. 539 (1931).

Trial judge occupies position of trier when passing upon ground of extraordinary motion for new trial in criminal case, based upon alleged bias of a juror; the judge's finding that a juror was impartial will not be reversed, unless it is apparent that the judge has abused the discretion which the law vests in the judge in such cases. Allen v. State, 88 Ga. App. 200, 76 S.E.2d 531 (1953).

When trial judge passes upon grounds of extraordinary motion for new trial, the judge occupies the position of trier of fact. Cade v. State, 107 Ga. App. 30, 129 S.E.2d 405 (1962).

When the trial judge passes upon the grounds of an extraordinary motion for new trial, the judge occupies the position of a trier of fact, and the judge's discretion in refusing the motion will not be disturbed unless manifestly abused. Satterwhite v. State, 235 Ga. App. 687, 509 S.E.2d 97 (1998).

Whole record may be looked into in determining whether motion is meritorious.

- While extraordinary motion is a new case, whole record, including extraordinary motion, may be looked into to determine whether extraordinary motion is meritorious; if from such examination of record trial judge as a matter of law determines that extraordinary motion is without merit, the judge may decline to entertain the motion and is not compelled, as a matter of law, to issue a rule nisi thereon. Loomis v. Edwards, 80 Ga. App. 396, 56 S.E.2d 183 (1949), cert. denied, 339 U.S. 970, 70 S. Ct. 989, 94 L. Ed. 1377 (1950).

Judge has discretion to hear affidavits or oral testimony.

- In hearing on extraordinary motion for new trial, when witnesses are present, and do not object, presiding judge has discretion as to whether the judge will hear affidavits or oral testimony. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Judge may admit, over objection, pertinent evidence.

- It is not error on hearing of extraordinary motion for new trial to admit, over objection, record of evidence taken at main trial bearing upon question to be decided. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

No special need for independent test shown.

- Trial court did not err in denying a defendant's post-conviction motion for funds to hire an expert of the defendant's choosing to conduct an independent DNA test since O.C.G.A. § 5-5-41 provided a method for the defendant to obtain additional testing; therefore, there was no special need for the trial court to fund an independent test. Palmer v. State, 286 Ga. App. 751, 650 S.E.2d 255 (2007), cert. denied, No. S07C1770, 2007 Ga. LEXIS 678 (Ga. 2007).

Trial court lacked discretion to ignore statutory mandate.

- Trial court erred in ignoring the mandate of O.C.G.A. § 5-5-41(c)(9) by ordering the state to provide evidence to an uncertified laboratory for testing. State v. Clark, 273 Ga. App. 411, 615 S.E.2d 143 (2005).

Extraordinary Motions Based on Newly Discovered Evidence

Extraordinary motion for new trial may be based upon newly discovered evidence. Central of Ga. Ry. v. O'Kelley, 16 Ga. App. 594, 85 S.E. 938 (1915).

Statute provides for extraordinary motions for new trial based on newly discovered evidence. Stembridge v. State, 84 Ga. App. 413, 65 S.E.2d 819 (1951), cert. dismissed, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952).

Procedure for securing new trial because of newly discovered evidence is motion for new trial made according to statute. Evans v. Perkins, 225 Ga. 48, 165 S.E.2d 652 (1969).

Trial judge possesses wide discretion in passing on extraordinary motions based on newly discovered evidence. Frank v. State, 142 Ga. 617, 83 S.E. 233 (1914); Fulford v. State, 222 Ga. 846, 152 S.E.2d 845 (1967).

Standard of review.

- Judgments on extraordinary motions based on newly discovered evidence are not disturbed absent abuse of discretion. Frank v. State, 142 Ga. 617, 83 S.E. 233 (1914); Fulford v. State, 222 Ga. 846, 152 S.E.2d 845 (1967).

Extraordinary motions for new trial based on newly discovered evidence are not favored by law. Dyal v. State, 121 Ga. App. 50, 172 S.E.2d 326 (1970).

Regarding newly discovered evidence, stricter rule is applied to extraordinary motions than to ordinary motions based upon such ground. Norman v. Goode, 121 Ga. 449, 49 S.E. 268 (1904); Jackson v. Williams, 149 Ga. 505, 101 S.E. 116 (1919); Reed Oil Co. v. Harrison, 26 Ga. App. 37, 105 S.E. 496 (1920); Baskin v. State, 43 Ga. App. 760, 160 S.E. 539 (1931); Gilpin v. Swainsboro Ice & Fuel Co., 75 Ga. App. 574, 44 S.E.2d 168 (1947).

Nature of new evidence.

- Trial judge, in passing on extraordinary motion for new trial, must determine whether evidence would likely produce different result upon another trial and whether facts could have been obtained before the verdict by the exercise of ordinary diligence. Bradley v. Bradley, 232 Ga. 717, 208 S.E.2d 817 (1974).

After one accused of a crime has been convicted, and has made a motion for new trial, and judgment denying the motion has been affirmed by the Supreme Court, when extraordinary motion for new trial is made, based on the ground of newly discovered evidence, it should be made to appear that such evidence is so material that it would probably produce a different verdict. Brannon v. State, 190 Ga. 203, 9 S.E.2d 152 (1940).

Although DNA evidence was material, due diligence was not shown.

- Defendant's motion for new trial on the basis of newly-discovered evidence (a co-defendant's DNA inside gloves, and the sexual assault victim said that her assailant wore gloves) was denied because, although this evidence was so material that it would probably produce a different verdict, the defendant failed to show due diligence in discovering the evidence: defendant was aware of the existence of the gloves at the time of trial. Bharadia v. State, 297 Ga. 567, 774 S.E.2d 90 (June 29, 2015).

DNA testing material potentially degraded.

- Trial court misapplied the law in determining whether the inmate satisfied the requirements of O.C.G.A. § 5-5-41(c)(7), when the court determined that the biological material sought to be DNA tested may have degraded as the court was charged with determining if the pants were in a condition that would allow for the test to be conducted and if the inmate had established a reasonable probability that the verdict would have been different it the results of the DNA testing sought had been available at trial. White v. State, 346 Ga. App. 448, 814 S.E.2d 447 (2018).

Will discovered subsequent to judgment probating another will.

- Petition to court of ordinary (now probate court) to set aside the judgment probating a will in solemn form on the ground that the later will has been discovered since rendition of the judgment, is analogous to but is not an extraordinary motion for new trial upon the ground of newly discovered evidence. Byrd v. Riggs, 210 Ga. 473, 80 S.E.2d 785 (1954).

Hearing motion requires transcript or brief of evidence.

- In order for extraordinary motion for new trial on ground of newly discovered evidence to be a valid motion, it must appear that newly discovered evidence is not merely cumulative or impeaching, and that it would likely produce a different result. None of these requirements can be determined without examination of evidence adduced upon original trial of case. Absent either transcript or brief of evidence adduced at original trial, court cannot make determination it is required to make by referring to only part of evidence. Dyal v. State, 121 Ga. App. 50, 172 S.E.2d 326 (1970).

Requirements for motion.

- A movant's extraordinary motion for a new trial based on recently discovered evidence must satisfy the court: (1) that newly discovered evidence has come to the movant's attention since his trial; (2) that want of due diligence was not the reason that his evidence was not acquired sooner; (3) that the evidence was so material that it would produce probably a different verdict; (4) that it was not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence is sufficiently explained; and (6) that the new evidence does not operate solely to impeach the credit of a witness. The motion must set forth facts to meet these requirements; conclusions of counsel will not suffice. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Denial of motion did not amount to abuse of discretion.

- Trial court did not abuse the court's discretion in denying the defendant's extraordinary motion for new trial without a hearing as: (1) the alleged newly-discovered evidence was not so material that the evidence would likely result in a different verdict; (2) the affidavits presented lacked the type of materiality required to support a new trial as the affidavits did not show the witnesses's trial testimony to have been the purest fabrication; (3) the defendant failed to act diligently in presenting the affidavits alleged to have supported the motion; (4) the trial court favored the original testimony, and as such, could not disregard the jury's verdict; and (5) the defendant failed to present the facts necessary to warrant a hearing on the motion. Davis v. State, 283 Ga. 438, 660 S.E.2d 354 (2008), cert.denied, mot. granted, 129 S. Ct. 397, 172 L. Ed. 2d 323 (2008).

Trial court did not err in denying the defendant's extraordinary motion for a new trial under O.C.G.A. § 5-5-41 because the codefendant's testimony at the hearing would probably not have produced a different result in the guilt/innocence phase if it had been presented at the defendant's trial; the defendant did not demonstrate that the defendant took diligent steps to ascertain what testimony the codefendant could have been willing to give during the more than 17 years since the codefendant's trial. Drane v. State, 291 Ga. 298, 728 S.E.2d 679 (2012), cert. denied, U.S. , 133 S. Ct. 663, 184 L. Ed. 2d 472 (2012).

Claim of innocence in habeas petition was not a constitutional claim.

- Petitioner, a death row inmate, argued in a federal habeas petition as a separate claim for relief that the petitioner was actually innocent, but that claim failed because actual innocence was not itself a constitutional claim, and was instead a gateway through which a habeas petitioner had to pass to have the petitioner's otherwise barred constitutional claim considered on the merits; further, the claim was not properly before the federal court, as the inmate could pursue a claim of actual innocence in state court by filing an extraordinary motion for new trial under O.C.G.A. §§ 5-5-23,5-5-40, and5-5-41. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).

Application

1. In General

Extraordinary motions are contemplated for events not ordinarily occurring in transaction of human affairs. Cade v. State, 107 Ga. App. 30, 129 S.E.2d 405 (1962).

Extraordinary cases contemplated by statute are those arising from some providential cause. Cox v. Hillyer, 65 Ga. 57 (1880); Harris v. Roan, 119 Ga. 379, 46 S.E. 433 (1904).

Types of fact situations contemplated by statute.

- Cases contemplated by statute are such as do not ordinarily occur in transaction of human affairs, as when a man has been convicted of murder, and it afterwards turns out that the man the defendant was charged with having killed is still alive, or when a man has been convicted on testimony of a witness who is afterwards found guilty of perjury in giving that testimony, or from some providential cause, and cases of like character. Patterson v. State, 228 Ga. 389, 185 S.E.2d 762 (1971).

DNA testing motion did not follow appointment of federal habeas counsel.

- Deoxyribonucleic acid (DNA) motion and an extraordinary motion for a new trial did not ordinarily follow the appointment of counsel in a federal habeas petition and thus were not subject to funding under 18 U.S.C. § 3599; the filing of the inmate's DNA motion had nothing to do with exhausting a federal constitutional claim in state court so that the district court could consider the claim on the merits in adjudicating the inmate's 28 U.S.C. § 2254 petition. The inmate's claim that the inmate was entitled to DNA testing as a matter of Georgia law was not, and could not have been, included as a claim in the inmate's § 2254 petition. Gary v. Georgia Diagnostic Prison, 686 F.3d 1261 (11th Cir. 2012).

Defects which occur in trial of defendant should be taken advantage of by ordinary motion for new trial, timely filed, unless good cause is shown for failure to file motion within time provided by law. Cade v. State, 107 Ga. App. 30, 129 S.E.2d 405 (1962).

Witnesses present at trial cannot be basis of motion.

- Extraordinary motion for new trial on ground of newly discovered evidence is properly refused, if it appears that witnesses whose evidence is alleged to have been newly discovered were subpoenaed by the defendant, were in attendance upon court, and were not sworn by the defendant. King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

Statute does not authorize second motion when first motion complaining of same verdict is pending.

- When motion for new trial is pending in superior court, there is no provision of law authorizing the movant to file a second separate original motion for new trial complaining of the same verdict, nor would instance of that character be comprehended by the statute. Harper v. Perry, 190 Ga. 233, 9 S.E.2d 160 (1940).

Showing required in extraordinary motion alleging invalidity of insurance policies used to establish homicide motive.

- When irrespective of whether insurance policies, which were used by the state to establish a motive for murder, were valid or invalid, in an extraordinary motion for new trial based on newly discovered evidence, no new evidence is produced which would establish that accused was aware at time of homicide that policies were invalid, motion should be overruled. Pulliam v. State, 199 Ga. 709, 35 S.E.2d 250 (1945).

Denial of extraordinary motion to set aside divorce decree precludes subsequent equitable petition on same grounds.

- When, after final verdict and decree for divorce, extraordinary motion for new trial is denied on merits of grounds, under conflicting evidence, such judgment precludes movant from maintaining subsequent equitable petition between same parties to set aside decree, based on substantially same grounds as those contained in former motion. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938).

Motion will be dismissed when diligence of movant is not shown. Patterson v. Collier, 77 Ga. 292, 3 S.E. 119 (1886); Jackson v. Williams, 149 Ga. 505, 101 S.E. 116 (1919); Edenfield v. Youmans, 33 Ga. App. 430, 126 S.E. 908 (1925).

Statute provides for immediate quid pro quo.

- Trial court erred by not requiring defendant to submit a sample of defendant's deoxyribonucleic acid (DNA) to the Georgia Bureau of Investigation for testing and for placement in the DNA data bank at the same time that the court granted the defendant testing of the slides; O.C.G.A. § 5-5-41(c)(9) provides for an immediate quid pro quo and if a defendant obtains an order for post-conviction DNA testing, a reference sample has to be provided simultaneously to the DNA data bank. State v. Clark, 273 Ga. App. 411, 615 S.E.2d 143 (2005).

Brady violation not found.

- Trial court did not err in denying the defendant's motion for a new trial due to an alleged Brady violation when there was no evidence of a lack of diligence by the state in inquiring about the status of the latent prints on the victim's car 18 years after the murder, or of any deliberate falsehood regarding the fingerprints' existence. Wilson v. State, 277 Ga. 114, 587 S.E.2d 9 (2003).

Findings in first order need not be restated.

- Trial court complied with O.C.G.A. § 5-5-41(c)(8) because the court determined in the court's first order that the defendant was indigent and that payment for any deoxyribonucleic acid (DNA) testing would be made from the fine and forfeiture fund. State v. Clark, 273 Ga. App. 411, 615 S.E.2d 143 (2005).

2. When Extraordinary Motion Proper

Relationship of juror to prosecutor within prohibited degree is ground for extraordinary motion. King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

Disqualifying relationship of juror to party may justify extraordinary motion for new trial. Edenfield v. Youmans, 33 Ga. App. 430, 126 S.E. 908 (1925).

Improper communication with jury may serve as a ground for granting an extraordinary motion for a new trial. King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

Withdrawal by state appointed attorney of motion for new trial justified subsequent extraordinary motion. Jackson v. Clark, 52 Ga. 53 (1874).

Defendant had excuse for delay in filing motion for new trial so as to authorize the trial court to entertain and hear such motion. See Jones v. Cooke, 169 Ga. App. 516, 313 S.E.2d 773 (1984).

Supplemental brief on appeal containing affidavit of a witness recanting the witness's trial testimony was in substance an extraordinary motion for new trial based on newly discovered evidence and should have been directed to the trial court in the first instance. Williams v. State, 254 Ga. 6, 326 S.E.2d 444 (1985).

Juror misconduct.

- New trial pursuant to extraordinary motion was unavailable on the ground of juror misconduct when the motion was supported by the testimony of only one juror some four years after the defendant's conviction, and the alleged misconduct of two jurors was not so prejudicial that the verdict lacked due process. Satterwhite v. State, 235 Ga. App. 687, 509 S.E.2d 97 (1998).

Juror qualification.

- Trial court did not abuse its discretion in granting plaintiffs' extraordinary motion for new trial based on an auto company's misleading discovery responses with regard to liability insurance because they acted with due diligence to raise their claim that the jury should have been qualified as to the auto company's insurers and the failure to do so raised an unrebutted presumption that they were materially harmed. Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014).

Failure to disclose insurance providers necessitated new trial.

- In a negligence and wrongful death action, the trial court did not abuse the court's discretion by granting the plaintiffs' extraordinary motion for new trial after it was discovered that the defendant had excess insurance that was not disclosed as it was determined that the defendant failed to disclose the insurance providers in the consolidated pre-trial order so that jurors could be fully qualified as to any relationship with the insurance providers. Reese v. Ford Motor Co., 320 Ga. App. 78, 738 S.E.2d 301 (2013).

After defendant's conviction has been affirmed on appeal, extraordinary motion for new trial is one of three available remedies.

- Petitioner's motion to vacate the petitioner's conviction was not an appropriate remedy in a criminal case after petitioner's murder conviction had been affirmed on direct appeal. The court overruled Division 2 of Chester v. State, 284 Ga. 162 (2008), which had allowed such motions under O.C.G.A. § 17-9-4, and held that in order to challenge a conviction after the conviction had been affirmed on direct appeal, petitioner was required to file an extraordinary motion for new trial, O.C.G.A. § 5-5-41, a motion in arrest of judgment, O.C.G.A. § 17-9-61, or a petition for habeas corpus under O.C.G.A. § 9-14-40. Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009).

Belief that witness could not be found.

- Trial court erred by denying the defendant's extraordinary motion for a new trial without first holding an evidentiary hearing because according to the motion the defendant was unaware that the witness would testify that the victim fired a weapon, the victim fired the weapon twice in the direction of the person standing on the upstairs porch, and the victim fired the second shot either shortly before or as the witness's car sped off, immediately before being struck by the co-defendant's return fire. In addition, the defendant asserted that the defendant did not acquire the witness' testimony sooner because the state informed the defense before trial that the witness could not be found. Stinchcomb v. State, Ga. , 843 S.E.2d 847 (2020).

New DNA evidence.

- Trial court did not abuse the court's discretion by granting the defendant a new trial based on newly discovered DNA evidence because the defendant satisfied the due diligence requirement of Timberlake as the record supported the trial court's determination that the ties and belt were not available to the defendant for DNA testing and analysis until 2015. The state's records and testimony given in a 2002 evidentiary hearing indicated that the belt and ties admitted in the 1977 trial were destroyed by the GBI in 1979, the items were not rediscovered by the defendant's attorneys until 2015, and touch DNA testing and analysis did not exist at the time of the 1977 trial. State v. Gates, 308 Ga. 238, 840 S.E.2d 437 (2020).

3. When Extraordinary Motion Unavailable

Matters known or discoverable prior to original motion.

- Extraordinary motions for new trial cannot be based upon matters that were known to movant in time to have had the matters stated in the original motion, or that could have been discovered in time by proper diligence. Allen v. State, 88 Ga. App. 200, 76 S.E.2d 531 (1953); Barfield v. McEntyre, 136 Ga. App. 294, 221 S.E.2d 58 (1975).

State of facts underlying extraordinary motion must have been unknown to movant or the movant's counsel at time when ordinary motion for new trial could have been filed, and must have been impossible to ascertain by exercise of proper diligence for that purpose. Gilpin v. Swainsboro Ice & Fuel Co., 75 Ga. App. 574, 44 S.E.2d 168 (1947); Cade v. State, 107 Ga. App. 30, 129 S.E.2d 405 (1962); Patterson v. State, 228 Ga. 389, 185 S.E.2d 762 (1971).

Matter which could have been subject of original motion cannot be subject of extraordinary motion. Barfield v. McEntyre, 136 Ga. App. 294, 221 S.E.2d 58 (1975).

Errors known at time of direct appeal.

- When absence of transcript of prosecutor's closing arguments was a matter known to defense counsel at the time of the defendant's direct appeal, all alleged errors premised upon the absence of that transcript should have been enumerated in that appeal and cannot now be raised by an extraordinary motion for new trial. Blake v. State, 244 Ga. 466, 260 S.E.2d 876 (1979), cert. denied, 446 U.S. 988, 100 S. Ct. 2974, 64 L. Ed. 2d 846 (1980).

Any errors regarding defendant's competence to stand trial and relating to whether charge of court was impermissibly burden-shifting could and should have been raised in his direct appeal and cannot now be raised by vehicle of extraordinary motion for new trial. Dix v. State, 244 Ga. 464, 260 S.E.2d 863 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980).

Reviewing grounds of ordinary motion filed after prescribed time.

- When denial of motion for new trial is affirmed, either on merits or from lack of jurisdiction due to failure to file within time allowed by statute for review, extraordinary motion for new trial will not lie to review any grounds in original motion even though some such grounds may be meritorious. King v. State, 174 Ga. 432, 163 S.E. 168 (1932).

Motion based on sufficiency of evidence.

- Sufficiency of the evidence is not a sufficiently good reason to grant an extraordinary motion for new trial. Franz v. State, 208 Ga. App. 677, 432 S.E.2d 554 (1993).

Mistake in naming parties in a motion is not grounds for extraordinary motion for new trial. Southwestern R.R. v. Craig, 62 Ga. 361 (1879).

No special circumstances were present justifying an extraordinary motion for a new trial based on proffered testimony of defendant's codefendant who had invoked the codefendant's Fifth Amendment right not to testify at the prior trial and who had pled guilty and been sentenced in the interim because the substance of the testimony was not in fact new evidence since it was always known by the defendant, and the witness lacked credibility since the witness had nothing to lose by testifying untruthfully regarding the alleged innocence of the defendant. Hester v. State, 219 Ga. App. 256, 465 S.E.2d 288 (1995).

Prior motion for new trial.

- Defendant's pleading, which sought an out-of-time appeal under circumstances where such an appeal was not permitted, could not be considered an extraordinary motion for new trial since the defendant had already filed such a motion in 1992 and was statutorily limited to filing one such motion under O.C.G.A. § 5-5-41(b). Richards v. State, 275 Ga. 190, 563 S.E.2d 856 (2002).

Extraordinary motion for new trial by inmate not proper remedy.

- Because an inmate's claims in the inmate's extraordinary motion for new trial under O.C.G.A. § 5-5-41(a) alleged constitutional violations, and because habeas corpus provided an adequate remedy for addressing these claims, the extraordinary motion for new trial was not the proper vehicle and the motion should have been dismissed. Davis v. State, 353 Ga. App. 896, 840 S.E.2d 128 (2020).

Defendant failed to show test results would have resulted in acquittal.

- Trial court did not err when the court concluded that defendant's request for DNA testing failed to meet the requirements of O.C.G.A. § 5-5-41(c)(3) because the defendant did not show that, had DNA testing been performed during the defendant's trial on a charge of murder, there was a reasonable probability the results would have led to defendant's acquittal. Crawford v. State, 278 Ga. 95, 597 S.E.2d 403, cert. denied, stay denied, 542 U.S. 954, 125 S. Ct. 5, 159 L. Ed. 2d 837 (2004).

Post-conviction motion for DNA testing denied.

- Trial court did not abuse the court's discretion in denying a defendant's post-conviction motion for deoxyribonucleic acid (DNA) testing because the defendant was barred from requesting DNA testing under O.C.G.A. § 5-5-41(c)(3) since the defendant's conviction for the crime of incest in violation of O.C.G.A. § 16-6-22(a)(3) was not defined as a serious violent felony under O.C.G.A. § 17-10-6.1(a). Hunter v. State, 294 Ga. App. 583, 669 S.E.2d 533 (2008).

District court properly dismissed the death row inmate's 42 U.S.C. § 1983 action and denied the defendant's motion for stay of execution because Georgia's procedures for accessing post-conviction DNA testing did not violate the defendant's due process rights, and the inmate's as-applied procedural due process claim attacking the state court's application of the state's DNA access procedure to facts of the defendant's case was properly dismissed because it was barred by the Rooker-Feldman doctrine, and the state court's misapplication of the law did not violate the Constitution. Cromartie v. Shealy, 941 F.3d 1244 (11th Cir. 2019), cert. denied, 140 S. Ct. 519, 2019 U.S. LEXIS 6929, 205 L. Ed. 2d 332 (U.S. 2019).

Direct appeal to denial of semen sample not available.

- Inmate could not bring a direct appeal of an order that denied the inmate's motion seeking testing of a semen sample; the inmate did not seek deoxyribonucleic acid (DNA) testing of the sample, rather, the inmate sought to have the semen tested for the presence of chemicals typically found in condom lubricants, which could be accomplished through non-DNA testing procedures. Bradberry v. State, 315 Ga. App. 434, 727 S.E.2d 208 (2012).

Claim of improper jury communication was required to be addressed through habeas proceedings.

- Defendant's post-appeal challenge to a criminal conviction brought 15 years after the defendant's conviction based on alleged improper communications with the jury that occurred during the trial but that were not brought to the defendant's attention until years later could not be pursued through an extraordinary motion for new trial because such claims involved a deprivation of the defendant's constitutional rights and were required to be pursued exclusively through a petition for a writ of habeas corpus. Mitchum v. State, 306 Ga. 878, 834 S.E.2d 65 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Extraordinary motion for new trial may be filed at any time after conviction; extraordinary motion must show that there is some material matter which would have been beneficial to the defendant at the time of trial and that such matters were unknown to the defendant and could not have been discovered by the defendant or defense counsel by use of due diligence. 1957 Op. Att'y Gen. p. 69.

RESEARCH REFERENCES

Admissibility and Reliability of Hair Sample Testing to Prove Illegal Drug Use, 47 POF3d 203.

ALR.

- Bill of review as the proper remedy where decree is entered after the death of a party, 6 A.L.R. 1524.

Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432.

Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788.

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