concurring in part and dissenting in part.
I concur in Divisions 1 and 2. I agree with Division 3 to the extent that the complaint was not raised below, but the case should not be remanded because the issue is foreclosed in this proceeding. White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989); Huff v. State, 191 Ga. App. 476 (382 SE2d 183) (1989).
A motion for new trial had been filed by trial counsel, but the record does not show who represented defendant at a hearing on it, if one was held. The motion was denied on February 15. Although trial counsel’s written motion to withdraw was filed and granted on March 15, appellate counsel must have been appointed on or before March 3. There is an order filed that date to release to him a copy of the transcript “for the purpose of handling an appeal.”
There still remained at least fourteen days from counsel’s appointment before a notice of appeal was due. Appellate counsel filed the notice on that last day, without raising by extraordinary motion for new trial the claim of ineffective assistance of counsel. This could have been done. OCGA § 5-5-41 (b). There was opportunity to do so and thus to present the issue to the trial court.
If there was not sufficient time to investigate to determine whether such an issue was viable1, an extension for the filing of the notice of appeal for an additional thirty days could have been sought. *432OCGA § 5-6-39 (a) (1). If the extraordinary motion was not ruled on within this extended time, requiring the appeal to proceed on grounds, if any, other than ineffective assistance due to the strictures of OCGA § 5-6-38 (a), a separate appeal would later lie by application from an adverse ruling on the extraordinary motion. OCGA § 5-6-35 (a) (7).
But at least the issue would have been properly raised in the trial court at the first instance, as is required for review. For “it is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.]” Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981); Shy v. State, 190 Ga. App. 370, 371 (2) (378 SE2d 920) (1989). This applies to constitutional rights, which is the basis of the claim “error” here. See, e.g., Ortiz v. State, 189 Ga. App. 428 (375 SE2d 891) (1988), involving the voluntariness of a consent to search. It is peculiar to have an issue never raised in the trial court heard and decided there on remand without even so much as a motion to lay the issue before that court.
It is true that this proper procedure yields a potential of two appeals, depending on the timing of an adverse ruling on the extraordinary motion, but the majority’s holding automatically results in two appeals in every instance of an adverse ruling on the ineffective assistance issue. There would be at least some cases where the trial court ruled on the extraordinary motion within the time, or extended time, for the filing of the notice of appeal. In these cases, all issues would be reviewable by the appellate court at one time by a consolidation of the two appeals in the event the denial of the extraordinary motion warranted full discretionary review.
This achieves finality at the earliest practicable moment, as intended. It also precludes the necessity of full review of the ineffectiveness claim when it is meritless. Of utmost importance is that if the trial court agreed that counsel was ineffective, preparation for the new trial and the new trial itself would occur much sooner.
The process provided by Georgia law has the efficacy of obtaining a directly sought, rather than circuitously mandated, ruling on the issue by the trial court. It also avoids the inevitable remand, which by its nature is burdened with delays and the unnecessary attention of the appellate court. The process was available to defendant, and he does not claim or show that appellate counsel could not utilize it. The majority’s ruling allows the case, and any with the issue similarly postured, to be shuttled back and forth between two overburdened courts and thus institutionalizing a procedure relatively unknown to Georgia law, one which brings with it cumbersome delay and piecemeal case management.
Johnson v. State, 259 Ga. 428 (383 SE2d 115) (1989), and *433Meders v. State, 260 Ga. 49 (389 SE2d 320) (1990), relied on by the majority, do not require otherwise. In the first place, remand is only a “practice” adopted in limited circumstances by the Supreme Court to avoid later habeas corpus petitions on the same issue. Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1) (1988). In the second place, the Court was proceeding on the State’s request for remand, which is absent here. Thirdly, the Court did not mention the availability of the extraordinary motion procedure in concluding that “there was no opportunity” for airing of the issue at the trial court. Also, Meders was a death penalty case and so was governed in addition by the comprehensive Unified Appeal Procedure rules.
Decided June 25, 1990 Rehearing denied July 16, 1990 — Cert, applied for. Michael A. Zoffmann, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, David Wright, Rebecca A. Keel, Assistant District Attorneys, for appellee.The underlying philosophy espoused by the Supreme Court is to require the issue to be raised “at the earliest practicable moment” or be waived. See Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), quoting from Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). The issue in this direct appeal from the conviction should be deemed as presenting nothing for review. As stated in Huff, supra at 477, “a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it.” And as held in Huff, the conviction should be affirmed, not remanded.
I am authorized to state that Presiding Judge Deen joins in this opinion.
The sole complaint about counsel’s assistance is that he introduced the notion that defendant displayed a knife during the fight, destroying the theory of self-defense in this case where defendant killed a person with a gun borrowed from a bystander.