Opinion
39868.
DECIDED JUNE 1, 1983. REHEARING DENIED JUNE 15, 1983.
Habeas corpus. Glynn Superior Court. Before Judge Killian.
Robert Eugene Williams, pro se. Glenn Thomas, Jr., District Attorney, Michael J. Bowers, Attorney General, for appellee.
Robert Eugene Williams was indicted for murder and subsequently was found guilty of voluntary manslaughter. On appeal, the Court of Appeals affirmed. Williams v. State, 163 Ga. App. 420 ( 294 S.E.2d 622) (1982). Williams subsequently filed a petition for writ of habeas corpus which was denied on October 20, 1982; his application to appeal was denied by this court on February 22, 1983.
While that application to appeal was pending, Williams filed a second pleading, captioned as a motion for an out of time appeal, contending that he was being illegally detained due to an illegal conviction based upon a tainted indictment; violation of his constitutional rights by failure to afford him a preliminary hearing; failure of the trial judge to give instructions to the jury as to involuntary manslaughter, self-defense, and accidental death; ineffective assistance of counsel; and the allowance of his statement (which he alleged was altered) into evidence. The trial court denied the motion, finding "no legal grounds for allowing such an out of time appeal." Williams appeals.
An out of time appeal occasionally is appropriate where, due to ineffective assistance of counsel, no appeal has been taken. See Furgerson v. State, 234 Ga. 594 ( 216 S.E.2d 845) (1975). That is not the case here. Therefore, treating the motion as a motion for an out of time appeal, the judgment of the trial court is affirmed. Treating the motion as a petition for habeas corpus, the appeal is dismissed for want of an application, OCGA § 9-14-52 (Code Ann. § 50-127), and as being successive, OCGA § 9-14-51 (Code Ann. § 50-127). Treating the motion as an extraordinary motion for new trial, the judgment of the trial court is affirmed due to Williams' failure to satisfy the requisites for the grant of an extraordinary motion for new trial. See Timberlake v. State, 246 Ga. 488, 491 ( 271 S.E.2d 792) (1980); Bell v. State, 227 Ga. 800, 805 ( 183 S.E.2d 357) (1971).
It is so ordered. All the Justices concur.