State v. Bilal, A89A0048
| Decision Date | 10 July 1989 |
| Docket Number | No. A89A0048,A89A0048 |
| Citation | 192 Ga.App. 185,384 S.E.2d 253 |
| Parties | The STATE v. BILAL. |
| Court | Georgia Court of Appeals |
James L. Webb, Sol. and Norman R. Miller, Asst. Sol., for appellant.
Leonard L. Franco and Raoul LeRow, Atlanta, for appellee.
Appellee was convicted by a jury of selling a dangerous drug in contravention of OCGA §§ 16-13-71 and 16-13-72. After trial, appellee made a motion for new trial and/or motion for directed verdict of acquittal notwithstanding the verdict. The trial court, troubled by the fact that the conviction resulted from the retail sale by a clerk of two small bottles labeled "Rush" and "Locker Room" which contained isobutyl nitrate, an isomer of the prohibited drug, butyl nitrate, granted appellee's motion for judgment notwithstanding the verdict. This was after the trial court denied a motion for directed verdict at trial.
The State appeals, arguing that this order is null and void because the remedy of acquittal notwithstanding the verdict does not exist in criminal law. Held:
Notwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment. Potts v. State, 236 Ga. 230, 223 S.E.2d 120 (1976); Darden v. Ravan, 232 Ga. 756 (1), 208 S.E.2d 846 (1974).
In Wilson v. State, 215 Ga. 775 (1), 113 S.E.2d 607 (1960), the Supreme Court held that there is no statutory provision in our criminal law for judgment notwithstanding the verdict and declined to judicially create such a remedy and disapproved of the holding to the contrary in Crowe v. State, 98 Ga.App. 185 (3), 105 S.E.2d 353 (1958). The addition of the right to move for a directed verdict in a criminal case by the legislature in 1971 (Ga. Law 1971, p. 460, § 1, codified as OCGA § 17-9-1) did not affect the holding in Wilson, supra, for the legislature did not create a right to judgment notwithstanding the verdict in a criminal case. We find that the trial court erred in entering judgment notwithstanding the verdict.
However, the trial judge's order was not a complete nullity. Where a motion for judgment notwithstanding the verdict is made in the alternative with a motion for a new trial in a criminal case, as was done here, such motion is treated simply as a motion for new trial. Lamons v. State, 176 Ga.App. 290 (2), 335...
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Gibbins v. State
...judgment. Potts v. State, 236 Ga. 230, 223 S.E.2d 120 (1976); Darden v. Ravan, 232 Ga. 756(1), 208 S.E.2d 846 (1974)." State v. Bilal, 192 Ga.App. 185, 384 S.E.2d 253. Therefore, as none of the circumstances specified in OCGA § 5-7-1(a) is present in this case, the State's entitlement to an......
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State v. Canup, A08A1924.
...(1993) (ruling that Georgia law does not provide for a motion for judgment of acquittal notwithstanding the verdict); State v. Bilal, 192 Ga.App. 185, 384 S.E.2d 253 (1989) (same). Although OCGA § 17-9-1 provides for a directed verdict of acquittal during trial, "that statute does not apply......
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Brown v. State
...proceeding. Rhyne v. State, 209 Ga.App. 548, 434 S.E.2d 76 (1993), aff'd, 264 Ga. 176, 442 S.E.2d 742 (1994); State v. Bilal, 192 Ga.App. 185, 186, 384 S.E.2d 253 (1989); Lamons v. State, 176 Ga.App. 290, 335 S.E.2d 652 (1985), rev'd on other grounds, 255 Ga. 511, 340 S.E.2d 183 (1986). Whe......
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Rhyne v. State, s. A93A0505
...Court, in Wilson v. State, 215 Ga. 775(1), 113 S.E.2d 607 (1960), declined to create such a remedy judicially. In State v. Bilal, 192 Ga.App. 185, 384 S.E.2d 253 (1989), this court noted that the legislature's creation, in 1971, of a right to move for directed verdict during trial, codified......