Foster v. State, 28028
| Decision Date | 05 September 1973 |
| Docket Number | No. 28028,28028 |
| Citation | 199 S.E.2d 790,230 Ga. 870 |
| Parties | William FOSTER v. The STATE. |
| Court | Georgia Supreme Court |
Hester & Hester, Frank B. Hester, Richard M. Hester, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Dennis S. Mackin, James H. Mobley, Jr., Morris H. Rosenberg, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Deputy Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
William Foster appeals from his conviction and sentence for the offense of armed robbery, and from the denial of his motion for new trial, which was on the usual general grounds.
1. The first enumerated error is that the court erred in denying the appellant's motion for new trial without a hearing. It is asserted that this ruling denied him his constitutional right to notice and an opportunity to be heard.
The appellant was jointly indicted with Samuel Shockley. See Shockley v. State, 230 Ga. 869, 199 S.E.2d 791. The same contention was made in the Shockley case as in the present case, under the same factual situation in regard to the motion for new trial. In both cases the order denying the motion for new trial was by a judge who did not preside at the trial, and the order recited that he denied it without hearing.
We have today held in the Shockley case that the statutes pertaining to motions for new trial clearly indicate that a movant for new trial is entitled to a hearing; that the statutory provisions for hearing are consonant with the constitutional requirements for procedural due process; and that a movant for new trial is entitled to be heard on his motion in the trial court before a ruling is made thereon. See Shockley v. State, supra.
The trial court in the present case erred in ruling on the motion for new trial of the appellant without a hearing. The case is returned for a hearing and disposition of the motion for new trial.
2. The second enumerated error is that the charge at the sentencing phase of the trial was confusing and ambiguous because the court initially charged the jury that they could set an indeterminate sentence, and later charged the jury that, 'according to counsel,' they should set a determinate sentence.
After the jury had retired to the jury room the trial judge had them brought back into the courtroom and instructed them that he had not been aware of a change in the law which repealed the indeterminate sentence law, but that his...
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Dick v. State
...court is required to hold a hearing on a motion for new trial, Shockley v. State, 230 Ga. 869, 199 S.E.2d 791 (1973); Foster v. State, 230 Ga. 870, 199 S.E.2d 790 (1973), we have also held that an extraordinary motion for new trial which fails to show any merit may be denied without the nec......
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Jones v. Spruill, A16A0330
...movant entitled to a hearing on a motion for new trial); Shockley v. State , 230 Ga. 869, 199 S.E.2d 791 (1973) ; Foster v. State , 230 Ga. 870, 199 S.E.2d 790 (1973) ; Lee v. State , 308 Ga.App. 711, 716, 708 S.E.2d 633 (2011). In most cases, the trial court's failure to hold the requisite......
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...See Dick v. State, 248 Ga. 898, 899 (1), 287 S.E.2d 11 (1982) ; Peyton, supra, 236 Ga. at 120 (1), 223 S.E.2d 96 ; Foster v. State, 230 Ga. 870, 199 S.E.2d 790 (1973) ; Shockley v. State, 230 Ga. 869, 199 S.E.2d 791 (1973) ; Gantt v. Sweatman, 162 Ga. App. 738, 739 (1), 293 S.E.2d 359 (1982......
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Jones v. State
...and a correct charge given, there is no merit in an assignment of error complaining of the incorrect charge." Foster v. State, 230 Ga. 870, 871, 199 S.E.2d 790, 791 (1973). See also, Shurley v. State, 210 Ga. 136(2), 78 S.E.2d 27 (1953); Fraley v. State, 120 Ga.App. 427, 170 S.E.2d 729 6. F......