Brown v. State

Beasley, Judge,

concurring specially.

I concur in Divisions 1 and 2. With respect to Division 3,1 concur as we have followed this procedure before. Lark v. State, 190 Ga. App. 821 (380 SE2d 505) (1989).

However, it should be noted that defendant did not raise this issue in the trial court, as could have been done. New counsel filed a notice of appeal instead of first seeking correction in the trial court. Doing so would have met what the Supreme Court regards as “a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, [which is] that any contention concerning the violation of [a] constitutional right . . . should be made at the earliest practicable moment.” Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). This principle, which was there applied to the right of counsel, has been similarly applied subsequently in Thompson v. State, 257 Ga. 386, 388 (359 SE2d 664) (1987), and Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988).

It ought also apply here, with waiver occurring in the future if the principle is not observed. Otherwise we become complicitors in delay by institutionalizing it. Overlooking the absence of a timely raising in the trial court encourages a lack of vigilance during the criminal proceeding in the knowledge that this court would simply return the case for further hearing. Piecemeal direct appeals, whereby a criminal case is shunted back and forth between the courts, ought to be avoided rather than reach routine proportions. Williams v. State, 257 Ga. 311 (357 SE2d 578) (1987) is a good example.