Moye v. State

• Decision Date: 17 October 1972
• Docket Number: 2,3,Nos. 1,No. 45380,45380,s. 1
• Citation: 127 Ga.App. 338,193 S.E.2d 562
• Parties: James N. MOYE v. The STATE
• Court: Georgia Court of Appeals

Page 562

193 S.E.2d 562

127 Ga.App. 338

James N. MOYE v. The STATE.

No. 45380.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 17, 1972.

Hester & Hester, Frank B. Hester, Alston, Miller & Gaines, Jerome Zivan, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Tony H Hight, Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

James N. Moye was convicted in Fulton Superior Court of the offense of larceny of an automobile and of credit cards. He appealed his conviction to this court and we affirmed, the judgment and oinion appearing in Moye v. State, 122 Ga.App. 14, 176 S.E.2d 180. No timely motion for rehearing was filed and in due course the remittitur was sent down to Fulton Superior Court on July 9, 1971.

Thereafter he applied to the United States District Court for a writ of habeas corpus. A full history of what had happened procedurally in the case up to that time will be found in Moye v. State of Ga., D.C., 330 F.Supp. 290. An order was entered by that court providing that unless within 60 days this court allow an out-of-time motion for rehearing to be filed and considered, the defendant be discharged. Such a motion for rehearing was filed October 22, 1971, but we dismissed it because of lack of jurisdiction. The State then appealed the order or judgment to the United States Court of Appeals, and there was an affirmance, the opinion and judgment appearing in Moye v. Highsmith, 5 Cir., 460 F.2d 1388.

In affirming the District Court the Court of Appeals again provided that unless an out-of-time motion for rehearing be allowed and considered within 60 days, the defendant be discharged, and pursuant to their order and judgment the record was ordered returned to this court by Fulton Superior Court so that we might have the matter before us.

Pending the appeal Moye had been released on his own recognizance to abide the judgment of the United States Court of Appeals on the appeal. We called for briefs from all counsel on the question of whether the release of Moye had rendered further questions moot. Moye's counsel sought an extension of time for the filing of his brief and it was granted. We now have all briefs before us, together with the record and copies of all orders that appear to have been made since our judgment of affirmance was entered. Held:

1. We conclude that the matter is not moot. As counsel for appellant concedes, the order by which Moye was released was not a final one. He was simply released on his recognizance requiring that he appear and abide further judgments in the matter.

2. Pursuant to the order and judgment of the United States Court of Appeals, affirming the District Court, we have reinstated the out-of-time motion for rehearing and have considered it on its merits. The grounds of the motion are:

'Defendant respectfully requests that he be granted a rehearing of his appeal and that the Court reconsider its decision dated June 11, 1970, in that defendant was denied counsel at his preliminary commitment hearing despite his requests to be provided with counsel. The denial of counsel occurred at a 'critical stage' at which counsel for the defendant must be provided. Coleman v. Alabama, 399 U.S. 1 (,90 S.Ct. 1999, 26 L.Ed.2d 387) (1970).'

The basis for a rehearing in this Court is found in Rule 33(f) (see 122 Ga.App. 885, 901):

'A rehearing will be granted, on motion of the losing party, only when it appears that the Court has overlooked a material fact in the record, a statute, or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneously construed or misapplied a provision of law or a controlling authority. No motion for a rehearing will be entertained which does not expressly point out what material fact in the record, or controlling statute or decision, has been overlooked by the Court, or what provision of law or controlling authority has been erroneously construed or misapplied.'

A careful examination of the record does not disclose that any contention was ever made or raised until the filing of this out-of-time motion for rehearing that appellant was denied counsel at a preliminary hearing. It does appear that an attorney from the Public Defender's office was assigned to represent him shortly after his indictment, and thereafter a Mr. Sapp was appointed, and upon his withdrawal Mr. Zivan was appointed as his counsel. Nothing in the record indicates that there was a preliminary hearing prior to the indictment.

After the verdict of guilty was returned a motion for new trial on the general grouns was filed, and afterwards amended to include three additonal grounds, viz., that the court had allowed an in-court identification of the defendant in violation of his constitutional rights, that the defendant had not physically been in the court room 'during conversation between the Honorable Judge presiding and the jury, said conversation taking place in the presence of the entire jury and in the involuntary absence and without his personal waiver, in violation of defendant's constitutional rights to be present at all stages of the trial,' and that the court had submitted both the issue of his guilt or innocence and of the sentence to be imposed to the same jury.

The motion, as amended, was overruled and defendant appealed,...