State v. Ballard , 321 So. 2d 318 ( 1975 )

PER CURIAM.

While an appeal from his conviction for second degree murder was pending in this court, the defendant filed a motion for a new trial in the trial court on the basis of newly discovered evidence. C.Cr.P. 851(3). He requested that we remand this case to the trial court for disposition of the motion for new trial, in accordance with C.Cr.P. 853:

“When the motion for a new trial is based on ground (3) of Article 851, the motion ma" be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case.”

The record before us does not contain the transcript of testimony, and is, therefore, inadequate to a determination of the merit of motion for new trial.

Therefore the case is remanded to the district court for a ruling on the motion for a new trial.