State v. Rimes

Benham, Judge. The State seeks in this appeal to have this case returned to the trial court for resentencing, asserting that the sentence is void. There is, however, an insurmountable obstacle preventing a consideration of the merits of the appeal. Appellee was sentenced on May 29, 1985, and filed a motion for new trial on June 4, 1985. The State filed its notice of appeal on June 28, 1985. The record was certified by the clerk of the trial court on July 3,1985, and was filed in this court on July 9,1985. A supplement to the record, certified by the clerk of the trial court on July 16, 1985, and filed on that same date in this court, contained an order denying appellee’s motion for new trial, entered on July 11, 1985. A notice of appeal filed while a motion for new trial is pending is premature and is of no effect. Strauss v. Peachtree Assoc., 156 Ga. App. 536 (275 SE2d 90) (1980); Graves v. State, 116 Ga. App. 19 (156 SE2d 205) (1967). The subsequent denial of the motion for new trial does not perfect the defective notice of appeal. Kurtz v. State, 115 Ga. App. 665 (155 SE2d 735) (1967). Under the rulings in the cases cited, this appeal must be dismissed. Appeal dismissed. Banke, C. J., and McMurray, P. J., concur.