Queen v. State ( 1993 )

Birdsong, Presiding Judge.

Hoyle Grady Queen III has filed a direct appeal of his judgment of conviction and sentence. In the interim between trial and the date of this opinion, appellant filed a State Bar complaint against his defense counsel asserting a claim of ineffective assistance of counsel. Appellant’s counsel thereafter filed a motion for leave to withdraw with the superior court. Appellant’s counsel asserts to this court, in support of his amended motion for extension of time to file enumerations of error and appellate brief and his amended motion for remand, that the issue of his continued representation as appellate counsel must be resolved as he believes his client wishes to pursue this matter on appeal and said counsel cannot assert such a claim on appeal against himself.

The amended motion for remand is granted subject to the following direction. In the event the motion to withdraw is granted by the superior court and any newly appointed counsel for appellant does file on appellant’s behalf a timely claim of ineffective assistance of counsel and requests a hearing on said issue, the trial court shall hold the requisite hearing and enter those findings necessary to a prompt and effective resolution of this issue. The Clerk of this court shall forthwith remove this appeal from the appellate docket, without prejudice to appellant, and return it to the Clerk of the Superior Court of Fannin County. Upon resolution of the issue of appellate counsel representation and of any subsequent issue of inadequacy of counsel, which may be timely raised (compare Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115)), and as a matter in aid of our jurisdiction, appellant may re-initiate his appeal of this case by timely refiling his original notice of appeal within 30 days of the trial court’s order of disposition. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV.

Appeal vacated and case remanded, without prejudice, with direction. Pope, C. J., McMurray, P. J., Cooper and Andrews, JJ., concur. Carley, P. J., Beasley, Johnson and Blackburn, JJ., concur in part and dissent in part.