PATE v. STATE (2008)

In November 2001, Barry Pate was convicted of three counts of aggravated sexual battery and other offenses.¹  On November 1, 2007, Pate filed a pro se motion pursuant to OCGA § 5-5-41(c), seeking DNA testing of a latex glove introduced into evidence at his trial.   He also filed a written request for a hearing on the motion.   The following day, November 2, 2007, the trial court entered an order denying the motion.   Pate appeals.

OCGA § 5-5-41(c) provides the grounds for filing an extraordinary motion for new trial seeking the performance of DNA testing.   Paragraphs (3) and (4) of that subsection set forth various requirements for such a motion, and if those requirements are met, the trial court shall order a hearing.²  Furthermore, “subsection (c)(12) provides that the judge shall set forth by written order the rationale for the grant or denial of the motion for new trial filed pursuant to this subsection.” ³

In the instant case, the day after Pate filed his motion, the trial court simply denied it without explanation.   The court made no determination as to whether Pate is entitled to a hearing on the motion, and it did not set forth any rationale for denying the motion.   We therefore vacate the trial court's order denying Pate's request for DNA testing and remand the case to the trial court with direction that it determine whether or not Pate is entitled to a hearing, and that it enter a written order setting forth its rationale for either granting or denying the motion.⁴

Order vacated and case remanded with direction.

FOOTNOTES

1.   Pate v. State, 269 Ga.App. 684, 605 S.E.2d 90 (2004).

2.   OCGA § 5-5-41(c)(6)(A).

3.   (Citation omitted;  emphasis in original.)  Johnson v. State, 272 Ga.App. 294, 295-296(4)(b), 612 S.E.2d 29 (2005).

4.   See id. at 296(4)(b), 612 S.E.2d 29.

JOHNSON, Presiding Judge.

BARNES, C.J., and PHIPPS, J., concur.