STAMEY v. STATE

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Court of Appeals of Georgia.

STAMEY v. The STATE.

No. A97A0799.

Decided: June 10, 1997

Ray H. Stamey, pro se. David McDade, District Attorney, for appellee.

Ray Stamey files this pro se appeal from the trial court's denial of his extraordinary motion for new trial.   Stamey argues he filed a motion to have personal property which was used as evidence in his trial returned to him, and did not “enter pleadings” for an extraordinary motion for new trial.   He contends that the trial court erroneously ruled on an issue not presented and entered the order when the time for ruling on the motion for return of property had expired.

1. The trial court did not rule on an issue not presented.   The record transmitted from the trial court does not include a motion for return of personal property.   Although Stamey has attached a copy of a motion for return of property to his brief, the attachment is not part of the record and cannot be considered.   See Bertone v. Wilkinson, 213 Ga.App. 255, 257, 444 S.E.2d 576 (1994).   Contrary to Stamey's assertion, the record does contain an extraordinary motion for new trial bearing his signature.   Therefore, the court ruled on an issue properly before it.

 2. The trial court did not abuse its discretion in denying Stamey's extraordinary motion for new trial.   Because his extraordinary motion for new trial was based upon newly discovered evidence, Stamey was required to satisfy all six requirements of Timberlake v. State, 246 Ga. 488, 491(1), 271 S.E.2d 792 (1980), as to the proffered evidence.   Failure to satisfy any one of these requirements is sufficient to deny an extraordinary motion for new trial.  Datz v. State, 210 Ga.App. 517(2), 436 S.E.2d 506 (1993).   In his motion, Stamey simply restated the requirements set forth in Timberlake.   He did nothing to satisfy the criteria.   He did not identify the newly discovered evidence or attach a witness affidavit to the motion or account for its absence.   Under these circumstances, the trial court did not abuse its discretion by denying the motion.   See generally Merka v. State, 201 Ga.App. 471, 472(2), 411 S.E.2d 357 (1991).

3. Stamey's argument that the trial court was not authorized to enter an order on the extraordinary motion for new trial after the time for ruling on the motion for return of property expired is without merit.   Furthermore, any issues raised regarding the motion for return of property are, for the reasons discussed in Division 1, not properly before us.

Judgment affirmed.

JOHNSON, Judge.

POPE, P.J., and BLACKBURN, J., concur.