OCGA 5-6-38 Interpretation

In Taylor v. State, 173 Ga. App. 745 (327 S.E.2d 860) (1985), O.C.G.A. 5-6-38 was interpreted to require court action to dispose of a motion for new trial. Because Taylor had withdrawn his motion for new trial, this Court concluded that it lacked jurisdiction to entertain the appeal. This reasoning was followed in both Hall v. State 213 Ga. App. 242 (445 S.E.2d 578) (1994) and Marshall v. State. 205 Ga. App. 531 (422 S.E.2d 677) (1992). This issue evidently was raised before the Supreme Court in Johnson v. State. 263 Ga. 395 (435 S.E.2d 195) (1993). Although the majority did not expressly address the issue, the dissent asserted that the Court was without jurisdiction to entertain the appeal because the trial court never entered any order on the defendant's motion for new trial. Id. at 396.