Kinney v. State

Pope, Judge.

Defendant John Kinney was convicted of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and possession of less than one ounce of marijuana, OCGA § 16-13-2 (2). He appeals following the denial of his motion for new trial.

1. Defendant contends that even though there was evidence he possessed cocaine, it was insufficient to justify his conviction for possession with intent to distribute.

On the contrary, the direct testimony of co-defendants along with evidence of the circumstances of the drug use, the substantial quantity of the contraband, and the substantial amount of cash on defendant, some of which bore cocaine residue, was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989); Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989); Holbrook v. State, 177 Ga. App. 318, 321 (2) (339 SE2d 346) (1985).

2. Defendant also contends he was denied effective assistance of counsel.

Defendant was sentenced on February 23, 1990. Four days later, trial counsel filed a motion for new trial based on the general grounds. On June 8, trial counsel filed a motion for a hearing date. Following the hearing, the court denied the motion for new trial on July 17, at which time trial counsel still represented defendant. New appellate counsel filed a notice of appeal on August 2 and raises for the first time the issue of ineffectiveness of trial counsel. Under these circumstances, where appellate counsel was appointed after the denial of the motion for new trial and the issue of ineffective assistance of trial counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the ineffectiveness issue. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989); In re G. G. L., 199 Ga. App. 357 (_SE2d_) (1991); Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990); see also McJunkin v. State, 199 Ga. App. 353 (_SE2d_) (1991) (Pope, J., concurring specially).

Judgment affirmed and case remanded with direction.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Cooper and Andrews, JJ., concur. Beasley, J., dissents.