192 Ga. App. 246 - Smith v. State

How this case has been cited

Cited by 9 later decisions — most recently December 2005

9 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Beasley, Judge,

¶1concurring specially.

¶2I concur but believe it necessary to point out with respect to Division 2 that this is not an appeal in which the trial court granted leave to file a late appeal and new counsel had no opportunity to raise the issue below.

¶3This out-of-time appeal was the relief sought in and granted by a habeas corpus court based on a petition filed on the prisoner’s behalf by new counsel. Such is reflected in the order of the habeas court which was transmitted to the criminal trial court. The ineffectiveness issue could have been raised in the habeas corpus petition brought by new counsel.

¶4Applying the principle which has repeatedly guided the decisions of the Georgia Supreme Court in this area and which is quoted in the *248majority opinion, “the earliest practicable moment” in this case was the habeas corpus proceeding. See for example McDuffie v. Jones, 248 Ga. 544, 550 (4) (283 SE2d 601) (1981). Not having been raised there, the issue was waived and remand for a third trip to the trial court is not warranted.

Decided July 11, 1989.Glenn B. Icard, Jr., for appellant.Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.