State v. Asinoff, 69423
| Decision Date | 27 February 1985 |
| Docket Number | No. 69423,69423 |
| Citation | 327 S.E.2d 237,173 Ga.App. 573 |
| Parties | The STATE v. ASINOFF. |
| Court | Georgia Court of Appeals |
James L. Webb, Sol., Christina A. Craddock, Asst. Sol., for appellant.
Charles R. Smith, Atlanta, for appellee.
Asinoff pleaded nolo contendere to an accusation charging him with driving under the influence of alcohol. The accusation bore the purported signature of James L. Webb, Solicitor General. Asinoff's plea was accepted and he was fined $350. Subsequently Asinoff learned that the accusation was not signed by Webb and filed a Petition for Writ of Error Coram Nobis. After a hearing at which the State stipulated that Webb did not sign the accusation, the trial court granted Asinoff's petition and set aside the judgment and sentence in his case. The State appealed the trial court's order granting Asinoff's petition. Asinoff filed a motion to dismiss the appeal on the ground that the State has no right under the provisions of OCGA § 5-7-1 to appeal the trial court's order.
The State argues that Asinoff's petition for a writ of error coram nobis should be treated as a motion in arrest of judgment, which the State has a right to appeal. We do not agree.
OCGA § 17-9-61 provides that a motion in arrest of judgment is based on nonamendable defects appearing on the face of the record and must be made during the term in which judgment was entered. A writ of error coram nobis is defined as Black's Law Dictionary, Special Deluxe Fifth Edition, 1979, p. 487; Hiawassee Lumber Co. v. United States, C.C.A., N.C., 64 F.2d 417, 418 (4th Cir.1933). Under the statutory definition Asinoff's motion could not be construed as a motion in arrest of judgment, as it did not relate to a nonamendable defect appearing on the face of the record, and it was not filed during the term of court in which judgment was entered. Thus, we must treat Asinoff's motion as it was denominated--a writ of error coram nobis, which our Supreme Court has held to be the predecessor to the extraordinary motion for a new trial based on newly discovered evidence. Willis v. State, 249 Ga. 261, 264(1), 290 S.E.2d 87 (1982).
OCGA § 5-7-1 sets...
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