Dozier v. State , 217 Ga. App. 835 ( 1995 )

Pope, Presiding Judge.

Defendant Antonio Dozier was convicted of armed robbery and appeals.

1. Defendant challenges the sufficiency of the evidence to support his armed robbery conviction. We find the evidence sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant also contends that the trial court erred in giving the jury the Allen or “dynamite” charge. However, our review of the record and transcript reveals that the jury had already reached its guilty verdict as to defendant Dozier when the Allen charge was given and that the jury’s deliberations after the charge concerned one of the co-defendants. It follows that this enumeration is without merit.

3. Defendant also argues, for the first time on appeal, that he was denied effective assistance of trial counsel, and the State has filed a motion for remand so that a hearing can be held on this issue. “ ‘In order to preserve the issue of trial counsel’s effectiveness for appellate review, “a claim of ineffective assistance of counsel (must) be determined by means of an evidentiary hearing at the earliest practicable moment.” (Cit.)’ Duitsman v. State, 212 Ga. App. 348, 350 (4) (441 SE2d 888) (1994). ‘Where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. (Cits.)’ Turner v. State, 210 Ga. App. 328, 329-330 (3) (436 SE2d 66) (1993).” Kennedy v. State, 217 Ga. App. 18, 19 (2) (456 SE2d 288).

The record in this case shows that new counsel filed a notice of appeal within 30 days of the entry of judgment; no motion for new trial was filed. “[U]nder our prior decisions, counsel’s election does not effect a procedural bar as to the asserted ineffective assistance claim, and we therefore remand the case for an evidentiary hearing on that issue. King v. State, 208 Ga. App. 77 (2) (430 SE2d 640) (1993).” Id. We would further note that the Supreme Court case of Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994) does not require a denial of the motion to remand because in that case a motion for new trial was filed, but appellate counsel withdrew the motion and filed an appeal in which the only issue raised was trial counsel’s ineffectiveness. The Supreme Court held that under these circumstances, appellate counsel should have amended the already filed motion for new trial instead of raising the issue of trial counsel’s ineffectiveness for the first time on appeal. In the case at hand, however, a motion for new trial was never filed below; remanding the case for a hearing on trial counsel’s ineffectiveness is thus both proper and necessary. If the court finds defendant was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to defendant, he will be entitled to appeal that order within 30 days.

Judgment affirmed and case remanded with direction.

McMurray, P. J., Birdsong, P. J., Blackburn and Smith, JJ., concur. Beasley, C. J., Andrews, Johnson and Ruffin, JJ., dissent.