SMITH v. THE STATE, 242 Ga. App. 459

Miller, Judge. Craig V. Smith was tried before a jury and found guilty of robbery, armed robbery, hijacking a motor vehicle, and aggravated assault. On direct appeal, he was granted a new trial due to an “illegally constituted jury.” At a hearing on January 26, 1999, Smith moved for discharge and acquittal under OCGA § 17-7-171 (b). The court twice orally denied Smith’s motion, once on January 26 and again on February 2. On February 5, he filed a notice of appeal from the January 26 denial. He later filed an “amended” notice of appeal from the court’s February 2 denial.

But “[i]t is elementary that an oral order is not final nor appealable until and unless it is reduced to writing, signed by the judge, and filed with the clerk.” Because both notices of appeal are from unappealable oral orders, we dismiss the appeal in Case No. A99A1978 and remand the case to give the trial court the opportunity to enter a written order on Smith’s motion for discharge and acquittal within ten days of receipt of the remittitur. Appeal dismissed and case remanded with direction. Pope, P. J., and Smith, J., concur. Decided February 22, 2000.

Johnson, Prioleau & Kenison, Theodore Johnson, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee. Smith v. State, 232 Ga. App. 458, 460-461 (1) (501 SE2d 622) (1998). (Citations omitted.) Sharp v. State, 183 Ga. App. 641, 642 (1) (360 SE2d 50) (1987); see OCGA § 5-6-31.