This is the second appearance of this case before this Court. A jury convicted Marcus Jackson on murder and related charges, after which the trial court granted defendant’s motion for new trial. This Court reversed, noting that the order granting new trial was entered solely on the ground of the legal insufficiency of the evidence, and not pursuant to OCGA § 5-5-21 with the trial court acting as the “thirteenth juror.”1 State v. Jackson, 294 Ga. 9 748 SE2d 902 2013. Jackson filed a motion for reconsideration in which he raised, as one of three grounds for reconsideration, the argument that the trial court’s order should be vacated not reversed and the case remanded to allow the trial court to review the case under the thirteenth juror standard. This Court denied the motion for reconsideration and the remittitur was filed in the trial court November 12, 2013. Two days later, Jackson filed a “Motion for Ruling Pursuant to OCGA Sections 5-5-20 and 5-5-21,” which was submitted to the predecessor trial judge, Fulton County Superior Court Judge Wendy L. Shoob. Apparently Judge Shoob was no longer the assigned judge in the case.2 Judge Gail S. Tusan, to whom the case appears to have been assigned at least by the time this Court’s earlier judgment was remitted to the trial court, entered an order that the judgment of this Court be made the judgment of the trial court, and that order was filed on November 20, 2013. Nevertheless, Judge Shoob entered an order dated December 6, 2013, purporting to grant Jackson a new trial pursuant to OCGA § 5-5-203 and 5-5-21. The State filed this appeal. We reverse, finding that jurisdiction was lacking for the entry of the post-remittitur order purporting to grant a new trial.
The record reflects that Jackson’s initial motion for new trial was amended to assert five grounds of legal error. On the day of the hearing, however, Jackson filed a second amended motion asserting as its sole ground the sufficiency of the evidence to support the verdict. At the hearing, Jackson confirmed his strategic choice to proceed solely on the claim of legal insufficiency of the evidence, with Jackson’s trial counsel stating he had discussed the motion at length with Jackson and that he and his client were in agreement to go forward “only on the sufficiency argument raised in the second amended motion.” Later in the hearing, counsel reiterated the express waiver and abandonment of all other grounds for rehearing. Upon reversing the order granting Jackson’s motion for new trial, this Court entered an order remitting the case to the trial court and directing that the trial court judgment granting the motion for new trial be reversed.
