Hunter v. State , 260 Ga. 762 ( 1991 )

260 Ga. 762 (1991) 399 S.E.2d 921

HUNTER
v.
THE STATE.

S90A1525.

Supreme Court of Georgia.

Decided January 31, 1991.

Charlie Hunter, pro se.

John R. Parks, District Attorney, for appellee.

BENHAM, Justice.

This appeal is from the denial of relief sought in a pleading entitled "Motion for Out-of-Time Appeal." Appellant entered a guilty plea in 1974 in Schley County to six offenses, one of them being murder. In 1988, a petition for a writ of habeas corpus, filed in Tattnall County where appellant was incarcerated and including as one of its grounds the allegedly ineffective assistance of counsel, was denied. In 1990, appellant filed the pleading which led to this appeal, but he filed it in Schley County, where he entered his guilty plea. The ground on which he claimed entitlement to an out-of-time appeal was that his appointed counsel in the 1974 prosecution failed to file an appeal even though appellant asked him to do so. The trial court in the present action held that appellant's claim was barred by the adverse ruling on the same issue in the 1988 habeas action.

An out of time appeal occasionally is appropriate where, due to ineffective assistance of counsel, no appeal has been taken. [Cit.] That is not the case here. [Williams v. State, 251 Ga. 83 (303 SE2d 111) (1983).]

That is not the case here because the issue of ineffective assistance of counsel was decided adversely to appellant in the 1988 habeas action and that judgment is conclusive on the issue. Wells v. Keith, 213 Ga. 858 (102 SE2d 533) (1958). The trial court was correct in denying appellant's motion for out-of-time appeal.

Judgment affirmed. All the Justices concur.