At Obie Phillip’s original trial, the jury was unable to reach a verdict on alternative malice and felony murder charges, but found him not guilty of aggravated assault. Thereafter, he filed a plea in bar, asserting that the acquittal prevented the State from retrying him for felony murder based upon commission of aggravated assault. The trial court denied the motion, and that ruling was affirmed on appeal. Phillips v. State , 272 Ga. 840 537 SE2d 63 2000. In February of 2001, the trial court placed the case on its administrative dead docket. Phillips’ retrial commenced in June of 2002. The jury found him guilty of both the malice and felony murder counts. Pursuant to Malcolm v. State , 263 Ga. 369, 372 4 434 SE2d 479 1993, trial court entered judgment only on the verdict as to malice murder and then sentenced Phillips to life in prison. After the denial of his motion for new trial, Phillips appeals.1 1. Phillips contends that it was error to conduct the retrial, because he was not provided sufficient notice that his case was being removed from the dead docket. However, he does not identify when or how this issue was raised below. If his defense counsel believed that additional time was needed, they could have requested a continuance. They did not do so. Thus, on the record before us, the alleged error in the timing of the retrial was not preserved for appellate review. See Culler v. State , 277 Ga. 717, 719 2 594 SE2d 631 2004; Watts v. State , 265 Ga. 888 2 463 SE2d 696 1995.
Moreover, Phillips cites no authority for the proposition that he was entitled to more notice than he actually got. He clearly received notice of the charges for which he would be tried, as his signature and that of his attorneys appear on the indictment to which he pled not guilty. Compare Collins v. State , 151 Ga. App. 116, 117 2 258 SE2d 769 1979 probationer did not receive sufficient written notice of his alleged violation. Although the case was placed on the dead docket after the original trial ended in a mistrial as to the murder charges, that ” ‘certainly constituted neither a dismissal nor a termination of the prosecution in the accused’s favor. A case is still pending which can be called for trial at the judge’s pleasure, or upon which the accused can make a demand for trial.’ Cits.” Cits. Beam v. State , 265 Ga. 853, 855 3, fn. 3 463 SE2d 347 1995. Nothing in the record supports a finding that, under the circumstances, Phillips failed to receive such notice of his retrial as would satisfy due process. Compare Ramirez v. State , 279 Ga. 13, 16 3 608 SE2d 645 2005 failure to provide notice of charge of indirect criminal contempt.
