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Gomez-Oliva v. State

Although the defendant's motion for new trial was premature, he filed his notice of appeal within 30 days of the trial court's denial of the motion, so his appeal was properly before the Court.

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Francisco Gomez-Oliva was indicted for rape OCGA § 16-6-1 a 1 and kidnapping OCGA § 16-5-40 a.1 Following a jury trial, Gomez-Oliva was found guilty of the lesser charge of attempted rape OCGA § § 16-4-1, 16-6-1 a 1, and he was sentenced to 25 years to serve the first 12 in confinement. Before the trial court entered the conviction, Gomez-Oliva filed a motion for new trial. Gomez-Oliva later filed an amended motion for new trial. The trial court denied Gomez-Oliva’s motion, and Gomez-Oliva filed this appeal. Gomez-Oliva argues that the evidence was insufficient to sustain his conviction and that he was denied effective assistance of counsel. Because Gomez-Oliva’s contentions lack merit, we affirm. Construed in the light most favorable to the prosecution, Jackson v. Virginia , 443 U. S. 307, 319 III B 99 SC 2781, 61 LEd2d 560 1979, the evidence shows that the victim was married to Gomez-Oliva for 20 years.

The victim testified that Gomez-Oliva was abusive toward her throughout the course of their marriage. For a period of approximately five years, Gomez-Oliva lived in the United States while the victim lived in El Salvador with their three children. In 2004, the victim moved to the United States in order to be with Gomez-Oliva. The victim later separated from Gomez-Oliva and initiated divorce proceedings. As of the date of the attempted rape, March 14, 2007, the victim was no longer living with Gomez-Oliva, and instead resided with her boyfriend.

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