Garvey v. State , 176 Ga. App. 268 ( 1985 )

On Motion for Rehearing.

Appellate counsel for defendant contends we “overlooked appellant’s second enumeration of error, wherein he claimed that he received ineffective assistance of counsel.” The second enumeration of error states: “The trial court erred when it denied defendant’s motion for continuance of one week, or alternatively, the defendant received ineffective assistance of appointed counsel.” This was but one of two enumerated errors that were stated in the alternative. We pointed out, in the opinion, that “an enumeration of error should contain but one allegation of error.” OCGA § 5-6-40; Pope, supra; MacDonald, supra. It is arguable that the alternative statement is but one error. If so, the enumerated error was answered when we held there was no error in the denial of the motion for the continuance for one week “on the basis that he was unprepared.” See Division 3 above. At trial, counsel raised an argument of ineffectiveness only in the context of sufficiency of time to prepare for trial. He advised the court: “This total argument is intended simply to point out to the court that based on the timeliness involved, Mr. Garvey had ineffective counsel and that adequate preparation time was not there. . . .” On appeal, in the brief, counsel again stated: “If this court finds that appointed counsel . . . should have been ready for trial on the date it was called, then this court should find that the defendant received ineffective assistance of counsel.” When this court found no reversible error in the denial of the requested continuance, this holding necessarily included consideration of all arguments in support of the enumeration, including the one that counsel had inadequate time to prepare and was thus ineffective.

Decided September 10, 1985 Rehearing denied September 30, 1985. Rhonda A. Brofman, for appellant. Robert F. Mumford, District Attorney, for appellee.

Our review of the record (including counsel’s pretrial motions to suppress, in limine, for discovery, for indictment and witnesses, and a Brady motion — with brief of law), and the transcript of testimony, show adequate preparation, consultation and representation. See Austin v. Carter, 248 Ga. 775 (2) (285 SE2d 542).

Motion for rehearing denied.