Parrish v. State , 194 Ga. App. 760 ( 1990 )

Beasley, Judge,

concurring in part and dissenting in part.

1. Before setting out the basis for dissenting, which is only as to Division 4, it is necessary to state that I concur in all other divisions except Division 1. Although I agree with its result, I do not read the transcript as showing “the State’s entirely truthful observation that no pre-trial motion to suppress had been filed.”

The parties had been arguing about the admissibility vel non of the statements made by the confidential informant to the witness and about whether the informant’s reliability was a relevant subject of inquiry by the State. Its counsel stated: “There have been no motions filed in this case. I, of course, have opened up my file to [defendant’s counsel].” While he may have been targeting the lack of a pretrial motion to suppress, it is not clear, and the court could conclude that there were no motions, which was not correct.

2. Defendant was sentenced on March 3, 1989. Appellate counsel, who was not the trial counsel, filed a notice of appeal on March 14. Appellate counsel apparently was the attorney whom defendant was considering hiring to serve as trial counsel. After the selection of the jury by the public defender on Monday, February 27, the court stated: “Mr. Parrish, if you intend to talk with Mr. Douglass [current appellate counsel], be sure to get in touch with him and let him know to be here Friday morning. Otherwise, Mr. Davis [the public defender who tried the case] will be representing you in this case.”

After Douglass filed the notice of appeal, the public defender filed the motion for new trial and obtained the transcript and a hearing date. The appeal would have been dismissible as premature if the notice had been filed after the motion but before the ruling thereon. See Brooks v. State, 187 Ga. App. 92, 93 (2) (369 SE2d 349) (1988). After a delayed hearing on the motion, it was denied. It contained no claim of ineffective assistance of counsel.

Since appellate counsel had entered the case no later than eleven days after sentencing, he could have filed a timely motion for new trial based on the now-asserted complaint, which is directed at trial counsel’s action and not at an erroneous ruling of the trial court. He also had the opportunity to amend the motion which was filed, so as to present the issue for ruling by the trial court. He chose instead, on behalf of defendant, to bypass the trial court and raise it for the first time on appeal.

The underlying principle guiding these cases is that the claim of ineffectiveness of counsel must be raised “at the earliest practicable moment” or it is waived. Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Since in this case that occurred with new counsel at the trial court level, the question is waived in this direct appeal. The cases cited by the majority relate to different circumstances.

Decided March 7, 1990. Orion L. Douglass, for appellant. Glenn Thomas, Jr., District Attorney, for appellee.

I am authorized to state that Presiding Judge Deen joins in this opinion.