TAYLOR, Presiding Judge. These three cases have been combined for purposes of writing an opinion that addresses issues arising from this court's application of the Alabama Supreme Court's holding in Ex parte Jackson, 598 So.2d 895 (Ala. 1992). The Alabama Supreme Court in Jackson established a procedure whereby counsel appointed to represent a defendant on appeal could present a claim of ineffective assistance of trial counsel to the trial court in a motion for a new trial.
Ingram filed an appeal on June 2, 1994. On June 3, 1994, the trial court appointed new counsel to represent him in the appeal. On June 15, 1994, Ingram's new attorney filed a motion, pursuant to Ex parte Jackson, 598 So.2d 895 (Ala. 1992), to toll the running of the time for filing a new trial motion; the trial court, on that same day, entered an order purporting to grant that motion. Ingram subsequently moved for a new trial, alleging, among other things, that he had been denied the right to effective assistance of counsel at trial.
Around March 10, 1994, Webb retained appellate counsel different from his trial counsel. On March 15, 1994 (less than 30 days after the date of Webb's sentencing), Webb's newly retained appellate counsel filed his notice of appearance, indicating that he would be representing Webb, and filed a motion pursuant to Ex parte Jackson, 598 So.2d 895 (Ala. 1992), seeking an order allowing appellate counsel an extension of 30 days from the court reporter's filing of the trial transcript in which to file a motion for a new trial. On March 22, 1994, the trial court granted Webb's Jackson motion; on July 7, 1994, the trial transcript was certified to appellate counsel as complete.
The appellant next contends that his counsel's performance was ineffective because, he says, counsel waived the appellant's preliminary hearing without the appellant's knowledge or consent. Initially, we note that the appellant did not present the issue of ineffective assistance of counsel before this appeal. The Alabama Supreme Court in Ex parte Jackson, 598 So.2d 895, 897 (Ala. 1992), stated: "[W]e will not make exception to the rule that a claim of ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court."
E. Direct Appeal Ten days after sentencing in 1994, the state trial court appointed new counsel for Payne. At that time, Alabama had a procedural rule, established by Ex parte Jackson, 598 So.2d 895 (Ala. 1992), which required new appellate counsel to raise ineffective-trial-counsel claims in a motion for new trial and then on direct appeal (as opposed to waiting until collateral proceedings). However, Payne's new appellate counsel did not file a motion for new trial and did not raise any ineffective-trial-counsel claims on direct appeal.
Davis was convicted of capital murder in December 1993; he was sentenced in March 1994. At the time Davis was convicted and sentenced Ex parte Jackson, 598 So.2d 895 (Ala. 1992), was in effect. In Jackson, the Supreme Court established a procedure for raising claims of ineffective assistance of trial counsel when new counsel was appointed for direct appeal.
R. 65. We consider that statement an obvious reference to the procedure set forth in Ex parte Jackson, 598 So.2d 895, 897 (Ala. 1992).November 4, 1993: Attorney George A. Nassaney, Jr., was appointed to represent the appellant on appeal.
The appellant, Michael Kelley, was convicted on June 14, 1994, of distributing a controlled substance, marijuana, a violation of § 13A-12-211, Code of Alabama 1975. He was sentenced on July 26, 1994, upon application of the schoolyard enhancement statute, § 13A-12-250, to seven years in the penitentiary. New counsel was appointed and a motion pursuant to Ex parte Jackson, 598 So.2d 895 (Ala. 1992), was filed on August 5, 1994. (This motion was made within 30 days of sentencing.) On August 8, the motion was denied and on August 12, the appellant filed a notice of appeal.
IEx parte Jackson, 598 So.2d 895 (Ala. 1992), provides newly appointed appellate counsel the opportunity to preserve certain issues in the trial court prior to appeal by: "fil[ing] a motion with the [trial] court within 14 days after his appointment, requesting that the running of the time within which to file a motion for a new trial be suspended until such time as the reporter's transcript is prepared and filed, then in that event, the 30-day period within which to file a motion for a new trial shall be computed from the date the reporter's transcript is filed. . . ."
This issue of counsel's alleged ineffectiveness was never presented to the trial court and is therefore not reviewable in this appeal. In Ex parte Jackson, 598 So.2d 895, 897 (Ala. 1992), the Alabama Supreme Court "reaffirm[ed] the principle that ' "claims of ineffective assistance of counsel may not be considered for the first time on direct appeal." ' "