*1 S96A0015. SMITH v. THE STATE.
Carley, murder, After Marvin Smith to two counts of he did timely appeal. subsequently not file a direct filed a He motion for an appeal, contending that trial counsel rendered right assistance since Smith was not informed of his to Smith appeals from the trial of his court’s denial motion an out-of-time where,
An appeal appropriate as the result inef- timely fective assistance of a not direct was taken. (2) (1993). Lane v. It is “the right for a Rowland v. frustrated [Cit.]” Accordingly, mo- Smith’s tion for properly was denied unless he had a timely by to file a direct which was frustrated the inef- fective assistance of counsel.
A timely the absolute file a direct judgment from a of conviction and sentence entered after a However, jury or bench trial. judgments conviction sentences were he A entered after criminal defendant has unqualified right no file a a judgment direct convic- tion and sentence on a A entered direct will lie a judgment guilty plea of conviction sentence on entered a “only if on by appearing the issue can be resolved facts Morrow v. Ac- cordingly, denial of Smith’s motion for an out-of-time “if, if, questions be reversed he that seeks raise on appeal may by record, appearing including be resolved facts guilty plea of his hearing.” movant, As the ‘good Smith had the and suffi- burden show ” cient’ Rowland supra at 875 Smith merely could not meet that burden by showing he “rights” that was at the hearing, actually but was he show that had a to file a timely direct by which was frustrated the ineffective assistance If timely counsel. “had Smith no file even a notice of judgment plea, from the on conviction entered [his] was ‘right’ he not entitled to be informed of non-existent supra at 4. could not meet his burden of proof without on he would raise by record, including could be resolved appearing facts tran- State, supra. of his hearing. Caine The defendant in Morrow affirmatively failed to meet ques- his burden because the facts appeal could not be proposed to raise
tions he because meet his burden failed to Smith also in the record. appearing be resolved appeal which could raise on questions proposed no he he merely he asserted Instead the record. out, pointed appeal. As has been “right” to not informed of conviction appeal from is no absolute there *2 guilty entered on showing a his burden failure to meet
Accordingly, Smith’s to an good and sufficient for an his motion court’s denial of of the trial requires affirmance peal Benham, concur, except All the Justices Judgment affirmed. Sears, J., J., who dissent. J., Fletcher, P. C. Justice, dissenting. Chief Benham, may appeal . . . any proceeding in defendant
“[T]he
...”
decision,
court.
or decree of the
sentence,
any
judgment,
(Thomas v.
statutory right to
By creating a
5-6-33.
OCGA §
520) (1990)),
(392
Georgia has made
262,
State,
263
SE2d
260 Ga.
“
finally adju-
system
integral part of the
appellate courts
‘an
v.
defendant,
. . .’” Evitts
innocence of a
dicating
guilt
the
[cit.].
821) (1985). In the
(105
83 LE2d
393
SC
Lucey, 469 U. S.
appeal of
statutory right of
months,
the
Court has eroded
last six
this
State,
v.
266 Ga.
In Morrow
pleads guilty.
the criminal defendant who
had no
472)
that Morrow
(463
(1995),
Court determined
this
3
SE2d
(467
State,
421
SE2d
in
v.
266 Ga.
appeal;
Caine
right to file an
in
he claimed
(1996),
Caine’s
this Court dismissed
render ef-
guilty did not
him when he
representing
the counsel
right of
counsel; today*
eviscerates the
this Court
assistance of
fective
seeking an out-
plea criminal defendant
appeal by ruling
guilty
that a
divulge
of counsel
assistance
appeal alleging
of-time
precedent
as a condition
present
he would
arguments
defend-
class of criminal
permitted
file
No other
being
to obtain the statu-
order
to make such a
ant
proce-
new
of such a
appeal, and this Court’s invention
tory right of
plea criminal defendant’s
hurdle is a curtailment
dural
equal protec-
process rights of due
constitutionally-guaranteed
State has
‘Once the
Lucey, supra,
689
plea
When
faced with the
resolving
by applying
the law
review limited
v.
Ga.
253
169
757) (1984).
(Benham,
supra
J.,
SE2d
See also
dis-
senting).
severely
holding
used to
been
curtail
See, e.g.,
defendant
raise
State, supra.
is especially
majority’s
What
ironic in the
treatment of
before us is the
record
fact
reference
and tran-
in-
shows that Smith
never
—
plea
formed that he had the
he was not
appointed
availability
informed of the
counsel to
or the time
within
appellate right
frame
which such
must be exer-
Bell v. Hopper,
Kilgo
v.
658) (1976);
cised.
Mobley
v.
(3) (403
Holloway Hopper,
See
Lane
See also
The
failure to inform a
entitling
constitutes ineffective assistance of
the defendant
order to exercise the
Bell v.
attorney’s
denied
shortcoming.
question
Decided 1996. pro Smith, se. Marvin Attorney, Hiatt, As- III, Daniel A. T. District William McBroom Attorney Attorney, General, Bowers, Su- J. Michael sistant District san Assistant Attaway, Attorney Boleyn, General, Beth Senior Assistant V. Attorney appellee. General, for PROFESSIONALS, DARBY et al. INC. v. S96A0234.FUTURE Sears, (“FAPA”) appellees Appellant Professionals, Future Inc. (“Darby” Darby Resources, Inc. Information and Aviation “AIR”) counseling providing engaged in the business of career are industry. applicants prospective job in the airline services to complaint seeking FAPA filed a to determine case was initiated when Darby joined Thereafter, in FAPA. AIR was the value of stock owned original complaint FAPA to include as a amended Georgia Deceptive alleged Trade Prac- violation of the Uniform (“the “UDTPA”), seq., against et tices Act Act” or grant solely AIR. This with the trial court’s concerned partial summary respect of AIR with to that favor protect phrase FAPA seeks to count.1 Because we find that the pilots,” merely descriptive, Act, ac- and has not “future airline protection quired any secondary meaning trigger that would UDTPA, affirm. we superior sought enjoin court, In AIR’s
1. FAPA use *4 promotions, phrase pilots” “future in its advertisements and airline contending phrase associated substan- that the is and has been relief . . . “injunctive the Act is Because the sole available (a), principles jurisdiction equity,” (emphasis supplied) this Court has v. Harbin VI, VI, But see Pittman III over this matter. Ga. Const. Art. Sec. Par. Knight, Assn., Beauchamp Clinic Professional