Kinney v. State

Beasley, Judge,

dissenting.

Although I concur in Division 1, I respectfully dissent with respect to Division 2 and remand of this case to the trial court.

Appellant contends that he was denied his rights under the State and Federal constitutions to effective assistance of counsel in that the public defender failed to seek suppression of the State’s evidence. However, the issue is foreclosed in this appeal.

The precise date that new appellate counsel entered the case is unclear. Assuming that he entered the case on August 2, the date he filed the notice of appeal, there still remained approximately two weeks before the end of the time to file a timely notice of appeal. Counsel could have raised by extraordinary motion for new trial the claim of ineffective assistance of counsel. OCGA § 5-5-41 (b).1 There was ample opportunity to do so and thereby to air the issue before the trial court. See the dissenting opinion in Weems v. State, 196 Ga. App. 429, 431-433 (395 SE2d 863) (1990). This would have been “the earliest practicable moment,” which is the measuring time adopted by *356the Georgia Supreme Court in Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986).

Decided March 15, 1991. Ernest B. Gilbert, for appellant. Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

“Where such error was not asserted in the trial court but was raised for the first time on appeal, there is no issue for an appellate court to review. [Cits.]” McJunkin v. State 199 Ga. App. 353 (_SE2d_) (1991).

Application of the rule of waiver in this case conforms with the Supreme Court’s recent decision in Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991). In Ponder, the Court enforced “the policy of initial review in the trial court” and, without calling it by name, pointed to the availability of the extraordinary motion for new trial procedure as a post-conviction remedy for raising the claim of ineffective assistance of counsel. Ponder, supra at 840. See OCGA §§ 5-6-39 (b); 5-5-41 (b). It must have meant an extraordinary motion under OCGA § 5-5-41, because by statute the time for filing a motion for new trial could not be extended. OCGA § 5-6-39 (b). The court’s grant of an out-of-time appeal could not effect a reprieve or resurrect the 30-day period allowed by law.

Since the Supreme Court in essence recognized the availability of an extraordinary motion for new trial as a procedural device for raising a claim of ineffective assistance of counsel when new counsel obtains an out-of-time appeal, the same opportunity must lie when new counsel enters the case after the motion for new trial pursued by trial counsel has been denied and before appeal is taken. OCGA § 5-5-41 affords that opportunity.

Moreover, OCGA § 5-6-39 (a) & (c) allows an additional 30-day period for appeal if the time from the denial of the original motion for new trial (or from the judgment if no such motion is made) is insufficient for the extraordinary motion. If it is decided within the extended time, it may be appealed as part of the direct appeal. If it is decided after the extended time, and the direct appeal proceeds without it, it can be appealed under OCGA § 5-6-35 (a) (7). The appellate court can, in its discretion, consolidate the appeals when there are two.

The point is, the opportunity exists in Georgia’s procedural law currently.

An extraordinary motion also may be made after the appeal period has run. OCGA § 5-5-41 (a) & (b). An application for appeal would provide appellate review. OCGA § 5-6-35 (a) (7).