Opinion
A90A1608.
DECIDED MARCH 15, 1991. REHEARING DENIED MARCH 28, 1991.
Drug violation, etc. Hall Superior Court. Before Judge Smith.
Summer Summer, Daniel A. Summer, for appellant.
C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.
Defendant was convicted of possession with intent to distribute a controlled substance, OCGA § 16-13-30 (b), and driving under the influence of alcohol, OCGA § 40-6-391. His two enumerations of error complain of the ineffectiveness of his trial counsel.
On appeal defendant is represented by new counsel who filed his notice of appeal 19 days after entry of judgment against him, but did not file a motion for new trial. For this reason, the question of whether his trial counsel was ineffective was not presented to the trial court. 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. Scott v. State, 193 Ga. App. 577, 580 (4) ( 388 S.E.2d 416) (1989); White v. State, 192 Ga. App. 703 ( 386 S.E.2d 56) (1989); Huff v. State, 191 Ga. App. 476, 477 (2) ( 382 S.E.2d 183) (1989); Gardiner v. State, 252 Ga. 422, 423 (2) ( 314 S.E.2d 202) (1984); Simpson v. State, 250 Ga. 365, 367 (2) ( 297 S.E.2d 288) (1982). See Bell v. State, 259 Ga. 272 ( 381 S.E.2d 514) (1989); Thompson v. State, 257 Ga. 386, 387 (2) ( 359 S.E.2d 664) (1987); Smith v. State, 192 Ga. App. 246, 247 (2) ( 384 S.E.2d 451) (1989). Cf. Weems v. State, 196 Ga. App. 429 (3) ( 395 S.E.2d 863) (1990); Ponder v. State, 260 Ga. 840 ( 400 S.E.2d 922) (1991).
Judgment affirmed. Andrews, J., concurs. Pope, J., concurs specially.
DECIDED MARCH 15, 1991 — REHEARING DENIED MARCH 28, 1991 — CERT. APPLIED FOR.
I write separately to caution the defense bar: In order to preserve for appellate review a claim concerning ineffective assistance of trial counsel, the claim must be raised in the trial court at the earliest opportunity or "earliest practicable moment." To date this principle has been applied to reach the following results: If appellate counsel is appointed after the filing of a notice of appeal or after the denial of a motion for new trial by the trial court, the appellate courts will remand the case to the trial court for an evidentiary hearing if the claim of ineffective assistance of counsel is later raised for the first time on appeal. See, e.g., Johnson v. State, 259 Ga. 428 (3) ( 383 S.E.2d 115) (1989); Hutton v. State, 192 Ga. App. 239 ( 384 S.E.2d 446) (1989), and Weems v. State, 196 Ga. App. 429 (3) ( 395 S.E.2d 863) (1990). On the other hand, if appellate counsel is appointed prior to the filing of the notice of appeal and no motion for new trial has been filed or the trial court has yet to rule on a motion for new trial, appellate counsel, in order to avoid waiver, must assert the ineffectiveness issue in the trial court, either by filing a motion for new trial or by amending an already filed but not yet ruled upon motion for new trial. See, e.g., Thompson v. State, 257 Ga. 386 (2) ( 359 S.E.2d 664) (1987); Simpson v. State, 250 Ga. 365, 367 (2) ( 297 S.E.2d 288) (1982); Ross v. State, 195 Ga. App. 624, 626 (3) ( 394 S.E.2d 418) (1990); Scott v. State, 193 Ga. App. 577, 580 (4) ( 388 S.E.2d 183) (1989); Huff v. State, 191 Ga. App. 476, 477 (2) ( 382 S.E.2d 183) (1989). Likewise, if permission to file an out-of-time appeal has been granted, appellate counsel must raise the ineffectiveness issue by motion for new trial in the trial court prior to the filing of the notice of appeal. Ponder v. State, 260 Ga. 840 ( 400 S.E.2d 922) (1991); see also Bell v. State, 259 Ga. 272 ( 581 S.E.2d 514) (1989).
The appellate courts' attempts to solve this dilemma are less than satisfactory. Both courses, remand and refusal to remand, have drawbacks. Perhaps the best procedure would be to have the trial court determine the effectiveness of counsel as a matter of course following every criminal trial in this State. Such a procedure has many obvious benefits, and hopefully would allow appellate review and resolution at the "earliest practicable moment."