concurring specially.
I agree that the whole court case of Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990) is controlling as to Division 2 and that his case must therefore be remanded to the trial court for a hearing on defendant’s ineffective assistance of counsel claim. However, I am compelled to write separately to express my concern with the line of cases that both appellate courts have rendered that has resulted in what Justice Fletcher recently described as “a confusing tangle of procedural rules regarding when to assert a claim of ineffective assistance of trial counsel.” Maxwell v. State, 262 Ga. 541, 543 (422 SE2d 543) (1992) (Fletcher, Justice, concurring specially).
As noted by the majority, this court has issued several panel decisions that correctly follow Parrish and its progeny. On the other hand, this court has also issued numerous panel decisions that ignore the holding in Parrish, and, in some cases, rely instead on cases decided prior to Parrish that were implicitly, though not specifically, overruled by Parrish.1 These cases, contrary to the holding in Parrish, have held that the issue of trial counsel’s ineffectiveness is waived if new counsel who enters the case before the expiration of the 30-day *80period during which a motion for new trial could be filed elects instead to file a direct appeal and therein asserts for the first time the ineffectiveness of trial counsel.2 Thus, while we are bound by Parrish, it is obvious that this court is not in complete accord that Parrish reaches the proper result in remanding for a hearing on the issue of ineffectiveness of trial counsel.
My review of several of our Georgia Supreme Court decisions dealing with this issue reveals equally muddy waters. In Sixayaketh v. State, 261 Ga. 690, 691 (2) (410 SE2d 112) (1991), the defendant dismissed his court-appointed counsel after trial and did not file a motion for new trial. However, proceeding pro se, defendant filed a timely notice of appeal raising for the first time the issue of trial counsel’s ineffectiveness. The Supreme Court held that under these circumstances the case should be remanded to the trial court for a hearing on defendant’s ineffective assistance of counsel claim.
While Sixayaketh provides direct authority for the result reached by the majority in this case, it is interesting to note that the Georgia Supreme Court denied certiorari in McJunkin, see footnote 1, supra, which reaches the opposite result of Parrish. Moreover, both Parrish and Sixayaketh, seem inconsistent with the often repeated mandate that to preserve an ineffectiveness claim for appellate review it must be raised at the “earliest practicable moment.”
Another inconsistency becomes obvious in attempting to reconcile these “timely” direct appeal cases (wherein new appellate counsel has elected to proceed by filing a notice of appeal rather than a motion for new trial), with the procedure set forth in Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922) (1991) and more recently in Maxwell v. State, 262 at 542 (3) for out-of-time appeal cases. In Ponder the Supreme Court held that when permission to file an out-of-time appeal is granted, appellate (new) counsel must file a motion for new trial in the trial court within the 30 days granted for filing the out-of-time appeal or the issue of trial counsel’s ineffectiveness is waived.
More recently, in Maxwell the Supreme Court considered the question of whether the procedure set forth in Ponder must be followed even if the defendant has already filed and been denied a motion for new trial prior to the grant of permission to file an out-of-time appeal. The Court answered the question in the affirmative, ruling “that a defendant who has had one motion for new trial may file a second motion for new trial within 30 days after the grant of an out-of-time appeal.” Maxwell, 262 Ga. at 543. In reaching this result, the Court, relying on the rationale set forth in Ponder, noted “that the *81grant of an out-of-time appeal permits a defendant, by the grace of the court, to start the post-conviction process anew.” (Footnote omitted.) Maxwell, 262 Ga. at 542-543. Pursuant to the holdings in Ponder and Maxwell the out-of-time defendant must file a motion for new trial to avoid waiver of an ineffectiveness claim, while under Sixayaketh and Parrish and its progeny a defendant who acts within 30 days of entry of judgment can choose not to pursue that claim at the first instance in the trial court by filing a motion for new trial but can elect instead to raise the ineffectiveness issue for the first time on appeal with the knowledge that the case will be remanded for a hearing on that issue. This to me seems inconsistent.
Another inequity appears when we compare Parrish and cases such as the one at bar with those cases in which new counsel does file a motion for new trial or amended motion for new trial but fails to raise the ineffectiveness issue, and the appellate courts thereafter hold that issue is waived when later asserted for the first time on appeal. See, e.g., Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664) (1987). It seems to me that the unintended result is that appellants in criminal cases (or their counsel) may decide it is safer to forego filing motions for new trial and proceed immediately to the appellate court, thereby creating a situation which is the antithesis of judicial economy and is in direct contravention to the stated goal of having these issues decided at the “earliest practicable moment.”
The time has come to unweave “the incredible tangle of special rules of procedure that apply when [an ineffective assistance of counsel] claim is asserted.” Maxwell, 262 Ga. at 543 (Fletcher, Justice, concurring specially). The best solution would be to implement a procedure, through the enactment of appropriate legislation, whereby the trial court would determine the effectiveness of counsel as a matter of course following every criminal trial in this state. This would obviate the need for the myriad of procedural rules, promote judicial economy by halting the practice of shuffling these cases back and forth between the lower and appellate courts, and most importantly, would allow these claims to be considered in the appropriate forum at the “earliest practicable moment.”
Lee v. State, 205 Ga. App. 659 (423 SE2d 29) (1992); Williams v. State, 202 Ga. App. 650 (415 SE2d 67) (1992); Buchanan v. State, 200 Ga. App. 416 (408 SE2d 721) (1991); Watts v. State, 200 Ga. App. 54 (1) (406 SE2d 562) (1991); McJunkin v. State, 199 Ga. App. 353 (405 SE2d 110), cert. denied, 199 Ga. App. 906 (1991).
A review of these decisions shows that a majority of judges now serving on this court have authored or concurred in opinions so holding.