State v. Gordon

VAUGHN, Judge.

Defendant contends that the trial court erred in refusing to grant his petition for a new trial on the basis of newly discovered evidence. Appeal does not lie from a refusal to grant a new trial for newly discovered evidence. State v. Thomas, 227 N.C. 71, 40 S.E. 2d 412; 3 Strong, N.C. Index 2d, Criminal Law, § 148. We have, however, treated defendant’s appeal as a petition for certiorari, which is allowed. The granting of a new trial based on newly discovered evidence rests within the sound discretion of the trial court, and its ruling thereon is not reviewable in the absence…