A94A0552 | Ga. Ct. App. | Apr 29, 1994
Anthony Peavy did not directly appeal his 1990 burglary conviction, but was granted an out-of-time appeal in a habeas corpus proceeding. After the out-of-time appeal was granted, Peavy did not file a motion for a new trial, but instead filed the instant appeal, in which his sole claim is that his trial counsel was ineffective. “[A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]” Ponder v. State, 260 Ga. 840" court="Ga." date_filed="1991-02-26" href="https://app.midpage.ai/document/ponder-v-state-1202274?utm_source=webapp" opinion_id="1202274">260 Ga. 840, 841-842 (1) (400 S.E.2d 922" court="Ga." date_filed="1991-02-26" href="https://app.midpage.ai/document/ponder-v-state-1202274?utm_source=webapp" opinion_id="1202274">400 SE2d 922) (1991); see also Maxwell v. State, 262 Ga. 541" court="Ga." date_filed="1992-11-17" href="https://app.midpage.ai/document/maxwell-v-state-1325843?utm_source=webapp" opinion_id="1325843">262 Ga. 541, 542-543 (3) (422 S.E.2d 543" court="Ga." date_filed="1992-11-17" href="https://app.midpage.ai/document/maxwell-v-state-1325843?utm_source=webapp" opinion_id="1325843">422 SE2d 543) (1992). Because Peavy’s appellate counsel failed to pursue a motion for a new trial after the grant of the out-of-time appeal, the issue of ineffective assistance of trial counsel is waived and cannot be asserted on appeal. Snell v. State, 203 Ga. App. 27" court="Ga. Ct. App." date_filed="1992-02-21" href="https://app.midpage.ai/document/snell-v-state-5645329?utm_source=webapp" opinion_id="5645329">203 Ga. App. 27, 28 (1) (416 S.E.2d 360" court="Ga. Ct. App." date_filed="1992-02-21" href="https://app.midpage.ai/document/snell-v-state-5645329?utm_source=webapp" opinion_id="5645329">416 SE2d 360) (1992); compare King v. State, 208 Ga. App. 77 (430 SE2d 640) (1993).
Judgment affirmed.