text:
    A92A0600.
    PURVIS v. VIRGIL BARBER CONTRACTOR, INC. et al.
    (421 SE2d 303)
   Birdsong, Presiding Judge.

John Albert Purvis, Jr. appeals from a judgment, based upon a jury verdict, in favor of Virgil Barber Contractor, Inc., the Georgia Department of Transportation (DOT), and Billy Jack Giddens on Purvis’ claim against them for damages arising from injuries he received when a car in which he was riding went through a “T” intersection and off the road on the other side. On the day of the incident, Barber Contractor was paving the county road under a contract with Berrien County pursuant to a contract between the county and DOT in which the county was to pave the road. Giddens was the DOT representative on the project. When he was injured, Purvis was a back seat passenger in a car driven by Donna Marie Hill, and he alleges he received severe permanent head injuries and paralysis as a result of defendants’ negligence.

Although he sued Hill, Berrien County, Barber Contractor, DOT, and Giddens, Purvis settled with Hill and Berrien County prior to trial. His claims alleged that Hill was negligent in the operation of the car; Berrien County, Barber Contractor, and DOT violated their legal duties to install warning signs and barricades at the intersection; and Giddens violated his duty to assure that the signs and barricades were installed.

Purvis contends the trial court erred by ruling and charging the jury that Barber Contractor had no duties under the DOT contract, by receiving testimony to that effect, and by failing to give his charge on this issue to the contrary. Purvis also contends the trial court erred by denying his motion in limine and objections seeking to exclude evidence that a test of his blood after the accident showed the presence of ethanol, and by charging the standard of care required of an impaired person. Finally, Purvis contends the trial court erred by denying his motion in limine and objections attempting to exclude, under OCGA § 40-8-76.1, evidence he was not wearing a seat belt at the time of the collision, and his objections to the testimony of a defense expert on the effects of not wearing a seat belt. Held:

1. Purvis’ contention that the trial court erred by construing the contract and charging the jury that Barber Contractor had no duty under the contract to install the warning signs is without merit. “The construction of a contract is a question of law for the court.” OCGA § 13-2-1. Thus, the trial court did not err by construing Virgil Barber Contractor’s obligation under the contract. Moreover, review of the contract shows that the construction given by the trial court was correct. The parts of the contract on which Purvis seeks to rely do not impose a requirement upon Barber Contractor to install the signs that Purvis contends were required. Instead, these provisions require Barber Contractor to install warning and traffic control devices connected with its paving of the highway.

Under our law Barber Contractor had no duty to protect Purvis from dangerous or defective conditions caused by others (Schwarcz v. Charlton County, 211 Ga. 923, 929-930 (89 SE2d 881)), and it is clear that Berrien County, not Barber Contractor, had the obligation to install the signs which Purvis claims were necessary. See OCGA § 32-4-41 (1): “A county shall plan, designate, improve, manage, control, construct, and maintain an adequate county road system and shall have control of and responsibility for all construction, maintenance, or other work related to the county road system,” and OCGA § 32-6-50 (c): “In conformity with the uniform regulations of the department, counties and municipalities shall place and maintain upon the public roads of their respective public road systems such traffic-control devices as are necessary to regulate, warn, or guide traffic.” Moreover, OCGA § 32-6-51 prohibits Barber Construction from placing the signs on its own initiative. See also Murdock v. Ledbetter-Johnson Co., 105 Ga. App. 551 (125 SE2d 99): A contractor had no duty to install warning signs at the “T” intersection. Therefore, this enumeration of error is without merit.

2. Purvis argues that the trial court erred by admitting the results of a blood test that showed he had consumed some alcohol because the admitting physician could not recall whether he had or-, dered the test. This contention is without merit. Regardless whether this particular physician ordered the test, the evidence showed that the test was conducted as part of the hospital’s routine admittance procedures for a patient who was unconscious at the time of admission. OCGA § 24-3-14 (b); Bynum v. Standard (Chevron) Oil Co., 157 Ga. App. 819, 820 (278 SE2d 669).

Moreover, we also find no error in giving the following charge: “I charge you that in viewing the conduct of a person impaired by alcohol for the purpose of determining his negligence or contributory negligence, the state of mind produced by that impairment may be disregarded or either be just as if the conduct occurred while he was in possession of his normal mental capacity.” This charge simply advised the jury that regardless of the evidence of consumption of alcohol Purvis was not entitled to be adjudged by a lesser standard of care for his own safety. This charge was authorized because of defendants’ contentions that Purvis was contributorily negligent in riding with a driver who was under the influence of alcohol. See Stephenson v. Whiten, 91 Ga. App. 110, 112 (85 SE2d 165).

3. Purvis’ final enumeration contends the trial court erred by denying his motion in limine and admitting evidence that he was not wearing his seat belt at the time of his injury because OCGA § 40-8-76.1 (d) prohibits the introduction of such testimony. Although OCGA § 40-8-76.1 (d) became effective on September 1, 1988, and this incident occurred on September 10, 1988, the trial court ruled that the Code section was inapplicable because by its terms the Code section only applies to front seat passengers and Purvis was a rear seat passenger. While we recognize the Code section as written permits an inconsistent result, the answer to this problem must be furnished by the legislature.

Decided June 25, 1992

Reconsideration denied July 14, 1992

Simpson & Gray, Ralph F. Simpson, Joseph B. Gray, Jr., O’Neal, Brown & Sizemore, Manley F. Brown, Lamar W. Sizemore, Jr., for appellant.

Michael J. Bowers, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Moore & Studstill, Mitchell O. Moore, for appellees.

Pretermitting whether the trial court erred in allowing the evidence, any error was harmless. OCGA § 9-11-61; Georgia Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328).

This court has consistently held that seat belt evidence is relevant only to the issue of damages. Payne v. Joyner, 197 Ga. App. 527, 528 (399 SE2d 83); Bales v. Shelton, 197 Ga. App. 522, 524 (399 SE2d 78); Cannon v. Lardner, 185 Ga. App. 194, 195 (363 SE2d 574); writ vacated as to this issue 258 Ga. 332 (368 SE2d 730); Wendlandt v. Shepherd Constr. Co., 178 Ga. App. 153, 154-155 (342 SE2d 352).

Therefore, when, as in this case, the jury has been instructed to consider seat belt evidence only on the issue of damages and not on liability and the jury returns a verdict for the defendant on liability, we have held that any errors concerning this issue were harmless. See Arnold v. Arnold, 197 Ga. App. 103, 105 (397 SE2d 724). Therefore, “we again conclude we need not decide the appropriateness of the seatbelt evidence . . . for it is clear from the transcript that the evidence was offered as relating to damages. Where a verdict is returned in favor of the defendant, any issue as to damages becomes moot. [Cits.]” Sapp v. Johnson, 184 Ga. App. 603, 606 (362 SE2d 82).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A0654.
    CHAMBERS v. THE STATE.
    (421 SE2d 88)
   Sognier, Chief Judge.

Michael Paul Chambers was indicted on a charge of murder and convicted of voluntary manslaughter. He appeals, contending the trial court erred by failing to give the jury his requested charge on the lesser included offense of involuntary manslaughter in the commission of an unlawful act. OCGA § 16-5-3 (a).

Evidence presented at trial established that appellant and his companion of six years, Kathy Way, had a fight over appellant’s decision to move out of the trailer home they shared. Detective Sergeant Ted Ray of the Clarke County Police Department testified that he and another officer responded to a radio report of a shooting at the Glen Forest Mobile Home Park, where the officers were met by appellant and led by him to his trailer home. Sgt. Ray stated that he entered the home and found Way face down on the floor of the bedroom with a cocked .22 caliber revolver approximately 6 inches from her feet. Way was removed by emergency personnel to a local hospital where, without recovering consciousness, she died less than 24 hours later from the effects of being shot by a bullet fired from a .22 caliber revolver. Ray testified that he deduced from the condition of the bedroom that a struggle of some type had taken place. He also testified that from the way belongings were boxed, it appeared that someone was moving either into or out of the home. Way’s young daughter testified that she had heard the victim and appellant arguing the night before the shooting and on an unspecified earlier occasion had heard appellant threaten to kill Way.

Both appellant’s taped and written statements were admitted into evidence. In his taped statement appellant told officers that Way got the gun during the course of the argument over his moving and that he “grabbed the gun from her and it went off. I don’t know if I hit the trigger or what I [did]” to cause the gun to fire. He stated he did not know how many shots were fired but was positive that neither he nor Way cocked the gun again. He denied knowing how the revolver found by Sgt. Ray next to Way’s feet had been cocked. In his written statement, appellant explained that when Way got the gun, she threatened to kill him, but then gave him the gun after he calmed her down. He stated that he saw that the hammer had been cocked and that he was trying to let the hammer down when the gun fired. He then threw the gun to the floor and, seeing Way fall, ran to a nearby store to telephone for help. Appellant did not testify at trial.

A pathologist testified for the State that the bullet entered the victim on her left side at the junction of the head and neck, about one-and-one-half inches from her left ear lobe, severing Way’s spinal cord. Based on the horizontal path of the bullet, the pathologist opined that the gun was held level with the victim’s body and that the shot was fired no more than a foot from the victim’s head. The pathologist testified that a person shot in this manner would lose consciousness immediately and would be unable to cock a revolver. The witness also detailed the bruises found on the victim’s body, which he stated had been sustained within 24 hours of her death.

Other expert testimony established that the fatal bullet was fired from the .22 caliber revolver found at her feet. The expert who examined the revolver testified that there was only a “very remote chance” that dropping it would cause it to cock and that in his opinion it would require some human agency to cock the weapon.

Appellant submitted written requests for charges on accident, self-defense, involuntary manslaughter in the commission of an unlawful act (OCGA § 16-5-3 (a)), and involuntary manslaughter in the commission of a lawful act in an unlawful manner (OCGA § 16-5-3 (b)). The transcript of the charge conference reveals that appellant specifically withdrew his request for a charge on self-defense, claimed that although he took the gun from Way in self-defense its discharge was an accident, thereby disavowing a justification defense, and requested instead that the trial court charge the jury on involuntary manslaughter in the commission of an unlawful act. However, after the trial court repeatedly reaffirmed its decision not to give the requested involuntary manslaughter-unlawful act charge, appellant reasserted his request for the self-defense charge, expressly informing the trial court that he did so as the result of the trial court’s ruling denying the requested involuntary manslaughter charge. The trial court then charged the jury on voluntary manslaughter, accident, and self-defense, but not as to the provisions of OCGA § 16-5-3 (a). After carefully reviewing the transcript of the charge conference, we do not agree with the State that the trial court’s giving of the self-defense charge precluded appellant from raising on appeal any error in the trial court’s refusal to charge involuntary manslaughter. See, e.g., Willis v. State, 258 Ga. 477-478 (1) (371 SE2d 376) (1988). Instead, we agree with appellant that because of the particular circumstances presented in the case sub judice, we can address his contention that the trial court’s failure to charge the provisions of OCGA § 16-5-3 (a) was error.

Appellant argues that the evidence outlined above required the trial court to charge the jury on the lesser included offense of involuntary manslaughter in the commission of an unlawful act. We do not agree. The essential elements of OCGA § 16-5-3 (a) are “first, intent to commit the unlawful act; and secondly, the killing of a human being without having so intended but as the proximate result of such intended unlawful act.” (Punctuation, citations, and emphasis omitted.) Grimes v. State, 199 Ga. App. 152, 153 (1) (404 SE2d 324) (1991). Appellant argues there was evidence from which the jury could have concluded that appellant was committing the unlawful act of reckless conduct, OCGA § 16-5-60 (b), when he attempted to lower the hammer on the revolver given to him by Way after she had earlier cocked the weapon, and that Way’s death was the proximate result of this intended unlawful act so as to render applicable a charge on involuntary manslaughter in the commission of an unlawful act.

Appellant’s argument is inconsistent both with the definition of reckless conduct and with appellant’s statements to the police. Reckless conduct exists where a person “causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” OCGA § 16-5-60 (b). The type of behavior that constitutes “reckless conduct” may best be described by noting that reckless conduct is a lesser included offense of aggravated assault, OCGA § 16-5-21 (a), because both crimes proscribe subjecting another to actual injury or the possibility of injury, but differ depending on whether the forbidden act is intentional or the product of criminal negligence. Bowers v. State, 177 Ga. App. 36, 37-38 (338 SE2d 457) (1985).

Given the statements appellant made to the police, we cannot agree that the evidence would have authorized a jury to find that appellant was “disregarding a substantial and unjustifiable risk” of harm when he accepted or took the cocked and loaded revolver from Way. On the contrary, appellant’s statements indicate that he acted consciously to avoid the substantial risk of harm to himself and to Way that the cocked pistol posed, but that the manner in which he handled the revolver he received from Way was “without due caution and circumspection, resulting in culpable negligence,” Nutt v. State, 159 Ga. App. 46, 47 (282 SE2d 696) (1981), i.e., a lawful act committed in an unlawful manner under OCGA § 16-5-3 (b). There is no evidence in the case sub judice to support the conclusion that appellant’s handling of the revolver constituted reckless conduct or was in any manner unlawful. See Nutt, supra.

Contrary to the parties’ assumptions, Willis, supra, does not hold that OCGA § 16-5-3 (b) is inapplicable any time the victim is killed by the shooting of a gun. See Drake v. State, 221 Ga. 347, 348 (2) (144 SE2d 519) (1965) (accused shot deceased in hunting incident; evidence held to support charge under subsection (a) or (b) because jury could decide that accuséd either committed unlawful act of hunting deer out of season or committed lawful act of shooting at fox); Maloof v. State, 139 Ga. App. 787 (229 SE2d 560) (1976) (charge on subsection (b) required where evidence showed accused, who was handing cocked gun to victim, decided to let hammer down first while pointing gun upwards; victim tried to move past accused at which time gun discharged, killing victim). Instead, Willis indicates only that one who willfully fires a gun at another acts either unlawfully or in self-defense.

Decided June 29, 1992

Reconsideration denied July 14, 1992

Richard L. Dickson, Russell C. Gabriel, James D. Love, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

Although appellant has expressly disavowed requesting the trial court to charge the jury on OCGA § 16-5-3 (b), given the mandate of OCGA § 5-5-24 (c), out of an abundance of caution we have nevertheless reviewed the record. See Foskey v. State, 116 Ga. App. 334, 336 (157 SE2d 314) (1967). We hold that although such a charge would have been authorized by the evidence, the failure to charge the jury on involuntary manslaughter in the commission of a lawful act was not so blatantly apparent and prejudicial that it raised a question whether appellant was deprived of a fair trial because of it, see generally id., especially because the evidence adduced by the State authorized the jury to find beyond a reasonable doubt that appellant was guilty of voluntary manslaughter (the offense upon which the jury was instructed) under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Massengale v. State, 189 Ga. App. 877-879 (377 SE2d 882) (1989).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

       We note that appellant withdrew and did not renew at any time his request for a charge on involuntary manslaughter in the commission of a lawful act. OCGA § 16-5-3 (b).

       We note that reckless conduct is the only unlawful act indicated by appellant’s version of the events that would support a charge on OCGA § 16-5-3 (a), since appellant disavowed intentionally pointing the gun at Way (thereby disavowing any claim of acting unlawfully pursuant to OCGA § 16-11-102, pointing a gun at another, which requires that the pointing be intentional, see Parsons v. State, 16 Ga. App. 212 (84 SE 974) (1915)) and use of a gun would render any unlawful assault on Way a felony under OCGA § 16-5-21 (a) (2).


author: Andrews, Judge.

text:
    A92A0684, A92A0685.
    JARRARD v. COPELAND et al.; and vice versa.
    (421 SE2d 84)
   Andrews, Judge.

These two appeals arose out of a lawsuit over a property boundary line; the case was tried by a jury and plaintiff Copeland prevailed over defendant Jarrard.

Case No. A92A0684 is defendant Jarrard’s appeal from the jury’s verdict which was returned against him on January 31, 1991. The court entered the judgment against him on February 19, 1991. Thereafter, Jarrard filed a motion for new trial, or for a judgment notwithstanding the verdict. Although the certificate of service on the motion is dated March 21, 1991, the motion was not filed with the clerk until March 22, 1991. See OCGA § 5-5-44.

OCGA § 5-5-40 (a) provides: “All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.” See also OCGA § 9-11-50 (b). Similarly, a motion for judgment notwithstanding the verdict must be filed within the same 30-day period. OCGA § 9-11-50 (b); see also Preferred Risk Co. v. Boykin, 174 Ga. App. 269 (329 SE2d 900) (1985).

Because the 30th day after February 19, 1991 was March 21, 1991, Jarrard’s motion was untimely and did not toll the time for filing the notice of appeal under OCGA § 5-6-38. Johnson v. State, 227 Ga. 219 (180 SE2d 94) (1971); Crolley v. Johnson, 185 Ga. App. 671 (365 SE2d 277) (1988). “[The] motion was not timely filed, and appellants did not comply with the requirements of OCGA § 5-5-41 ... for the filing of an extraordinary motion for a new trial.” Batson v. First Nat. Bank of Brunswick, 170 Ga. App. 803 (1) (318 SE2d 227) (1984); see also OCGA §§ 5-5-41 (a); 5-6-39 (b). The appeal is therefore untimely since the notice of appeal was filed on June 12, 1991, which was more than 30 days after the entry of the February 19, 1991 judgment, and accordingly this case is dismissed. Wright v. Rhodes, 198 Ga. App. 269 (401 SE2d 35) (1991).

We now address the issue of Copeland’s cross appeal. OCGA § 5-6-38 provides that in “civil cases, the appellee may institute cross appeal by filing notice thereof within 15 days from service of the notice of appeal by the appellant; and the appellee may present for adjudication on the cross appeal all errors or rulings adversely affecting him; and in no case shall the appellee be required to institute an independent appeal on his own right, although the appellee may at his option file an independent appeal.”

“We interpret this language to mean that a valid appeal from a judgment must be perfected in accordance with the Appellate Practice Act, so as to give the appellate court jurisdiction, before a cross appeal by any other party to the case can be perfected so as to give the appellate court jurisdiction of the cross appeal. In other words, unless the jurisdiction of the appellate court is invoked within the 30-day period following the filing of the judgment in the trial court by a party to the case, then the appellate court is without jurisdiction to review the judgment of the trial court; and the result is that the judgment of the trial court stands as rendered.

“This court being without jurisdiction to consider either the attempted appeal or the attempted cross appeal, the judgment of the trial court by operation of law, stands as rendered.” Wood v. Atkinson, 229 Ga. 179, 181 (190 SE2d 46) (1972); Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493 (268 SE2d 733) (1980).

Appeal dismissed in Case No. A92A0684 and Case No. A92A0685.

Decided June 24, 1992

Reconsideration dismissed July 14, 1992.

Francisco Gonzalez-Burgos, for appellant;

Solomon & Edgar, William J. Edgar, for appellees.

Birdsong, P. J., and Beasley, J., concur.


author: Beasley, Judge. Andrews, Judge,

text:
    A92A0214.
    McCLURE v. THE STATE.
    (421 SE2d 121)
   Beasley, Judge.

Sean McClure appeals the trial court’s dismissal for failure to comply with OCGA § 5-6-42 of the appeal of his conviction for misdemeanor theft by shoplifting, OCGA § 16-8-14 (a) and (b) (1). The dismissal followed a hearing on the State’s motion to dismiss grounded on defendant’s failure to pay the remaining amount needed for completion of the trial transcript, his not filing the transcript, and his failure to file a request for extension of time for its filing. See OCGA § 5-6-39 (a) (3).

Defendant, via new appellate counsel, challenges the dismissal on two bases: defendant’s former appellate representation by “pro bono” counsel, defendant’s father, was ineffective under the standards of the State and Federal Constitutions because of counsel’s failure to seek an extension of time to obtain the trial transcript so as to prevent dismissal of defendant’s appeal; as an indigent, defendant was denied his rights, under the State and Federal Constitutions, to appointed counsel and was forced to seek the ineffective assistance of his attorney-father to pursue his appeal. A consideration of the history of counsel involvement is necessary for proper disposition.

On April 6, 1990, the court certified defendant as indigent and entitled to appointed counsel. The court administrator assigned attorney Matthews, and a trial at the beginning of July resulted in a conviction.

On July 11, Matthews filed a notice of appeal which stated that a transcript of evidence and proceedings would be filed for inclusion in the record on appeal. He appended an “Enumeration of Errors” which included an allegation that he had not provided defendant with effective assistance at trial. On July 27, Matthews filed a “Motion for Trial Transcript” asserting that defendant was indigent and unable to afford a copy of his trial transcript. Four days later, the State moved for a substitution of counsel because of the pragmatic and ethical considerations in resolving the issue of ineffective assistance of trial counsel. After a hearing on August 10, the court disqualified Matthews because of defendant’s desire to pursue that issue. The order concluded: “In that the Court has not yet appointed council (sic) for the Defendant at public expense for appellate purposes, the Defendant must, if desired, move this Court to do so.” The motion for a trial transcript which had been filed by Matthews was not ruled on.

Ten days later, defendant himself filed a pauper’s affidavit in which he certified that he was unable to afford his appeal and unable to pay for a copy of his trial transcript. He also filed a letter addressed to the trial court which related his inability to obtain employment and his indigence. It concluded: “It is my understanding that . . . Matthews has been removed as my counsel, therefore, I ask the Courts to please appoint competent defense counsel for my appeal.”

On the same day, the trial court wrote defendant a letter advising, “I will not appoint an attorney to represent you on your appeal unless you appear before me for a hearing to determine whether you are eligible for such an appointed attorney. Please contact my secretary as soon as possible to arrange a time for this hearing.”

On October 19, the defendant’s father, an attorney, filed a notice of appearance as appellate counsel and an amendment to the notice of appeal. It reaffirmed that a full trial transcript would be filed for inclusion in the record on appeal and reserved the right to further amend the notice and enumerations of error upon receipt of the trial transcript. On the same day, this counsel also filed a copy of a request for transcript addressed to the court reporter which recited that he enclosed a $500 deposit so that the trial transcript could be completed and provided as soon as practicable.

About 11 months later, in September 1991, the State moved to dismiss the appeal. The court conducted a hearing on the motion on September 25 at which counsel argued his own financial hardship and inability to pay the remaining transcript costs on behalf of his son. He admitted his own legal ineffectiveness in failing to file for an extension to obtain the transcript. He also filed in open court a “Motion for Appointment of Counsel and Payment to Attorney for Trial Transcript” in which he stated that his son was indigent and unable to afford appellate counsel or a trial transcript, that he himself was representing defendant pro bono and had paid the court costs and $945 to the court reporter for the trial transcript, and that he himself was unable to sustain the costs of the appeal and transcript. The motion requested that the court appoint qualified counsel to represent defendant and that the attorney/father be reimbursed for the costs of the appeal and the transcript. Appended to the motion was an affidavit by defendant reaffirming his indigence.

Two days after the hearing, the court entered the dismissal order at issue. The order stated that prior to Matthews’ being relieved, the court had verbally notified Matthews that before the court would consider any further appointment of counsel, there would have to be a new indigency hearing since evidence had come out during trial which caused the court to doubt its previous finding of defendant’s indigence. It added, “Although the second paragraph of the written order of August 10, 1990 appears to attempt to address this point, the Court for clarity purposes, has restated its position at that time.” The court further stated that defendant had never complied with the court’s “directive to appear before the Court to be examined to determine his continued eligibility for Court Appointed Counsel and for the county to provide the transcript at taxpayer’s expense.” The court concluded that “the failure to comply with [OCGA §] 5-6-42 was occasioned by the conduct of the Defendant, and not the conduct of his trial counsel or of his subsequently-retained appellate counsel (his father), . . .”

1. The quality of the attorney/father’s legal representation insofar as reflected by the failure to file for an extension of time to obtain the transcript did not figure in the trial court’s decision. Thus, aside from any procedural impediment to a present consideration of the issue of his effectiveness in his interim appellate representation, such issue of ineffective appellate counsel is not a relevant inquiry in regard to the propriety of the dismissal of defendant’s appeal. See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

2. The crux is the defendant’s own conduct in pursuing his appeal in the context of his entitlement, if any, to further appellate representation on the basis of indigence.

“A person convicted of a crime in a trial court in this state is not entitled to have his conviction reviewed as a matter of right by an appellate court. He must pursue applicable statutory requirements. A convicted party can, by his own conduct or by his conduct in ‘concert with that of his attorney, forfeit his appeal. If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court.” State v. Denson, 236 Ga. 239, 240 (223 SE2d 640) (1976). The trial court may make a factual determination of whether or not the convicted defendant’s conduct, alone or in concert, purposefully delayed review by the appellate court. Such a determination will not be reversed if there is evidence to sustain it. Id. at 241.

First, even though the trial court pinned its decision to dismiss on the defendant’s own conduct, it made no determination as to whether or not the cited conduct of omission amounted to a purposeful delay of the appeal. Nor did it make any finding pursuant to OCGA § 5-6-48 (c) that the delay in filing the transcript was unrea sonable and inexcusable. See Watts v. State, 185 Ga. App. 654, 656 (1) (365 SE2d 501) (1988).

Second, the evidence of record would not support a finding of a purposeful delay of the appeal by defendant’s own conduct, as a matter of law. At most it points to a lack of communication between the court and defendant during the post-conviction time period in which defendant became unrepresented by counsel. Accepting the court’s statement that prior to the release of appointed attorney Matthews, the court verbally notified Matthews that a new indigency hearing would be required before further appointment of counsel, there is no evidence that such fact was ever actually related to defendant.

Further, the court’s August 10 order removing Matthews did not direct defendant to appear for a hearing on the question of indigence but instead instructed the defendant to “move” the court to appoint other appellate counsel, if the defendant so desired. This the defendant did, ten days later, in his pro se submission. While such documents were not formally presented as a motion, they clearly gave notice of defendant’s asserted need and request because of indigence for a trial transcript and appointed counsel to pursue his appeal. See Roberts v. Caldwell, 230 Ga. 223 (196 SE2d 444) (1973).

Lastly, there is no evidence that the court’s August 20 letter was mailed to or received by him, instructing him to contact the office for a hearing date.

The defendant’s repeated and consistent petitions for further appointed representation and a free trial transcript because of indigence, both while represented by counsel and while pro se, would countervail the conclusion that defendant intentionally impeded an additional determination of indigence for the purpose of delaying his appeal.

The record shows that the delay was not purposeful on defendant’s part. Considering all these circumstances, it could not be regarded as unreasonable or inexcusable. The appeal should not have been dismissed.

The question remains, what now?

“ ‘Defendants in criminal cases have both a federal and a state constitutional right to be represented by counsel or, in the alternative, to represent themselves. However, it is only indigent defendants for whom the trial court must appoint counsel.’ Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987). ‘This right extends to every indigent accused who indicates his desire to appeal.’ McAuliffe v. Rutledge, 231 Ga. 1, 3 (200 SE2d 100) (1973).” Mapp v. State, 199 Ga. App. 47, 48 (403 SE2d 833) (1991).

The judgment of dismissal is reversed. The case is remanded for a determination of defendant’s present indigence and appointment of appellate counsel, if warranted, who can pursue an out-of-time appeal from the conviction. See Mapp, supra at 48.

Judgment of dismissal of appeal reversed and case remanded.

Birdsong, P. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I agree with the judgment that the order of dismissal must be reversed and the case remanded to the trial court. However, the conclusion that the case should be remanded for a hearing to determine if the defendant is indigent is unnecessary since the record reflects the trial judge signed a certificate finding the defendant indigent after a hearing on October 3, 1991.

The letter of the trial court dated August 20, 1990, addressed to the defendant (a copy of which was also filed with the clerk of court on the same day) instructing the defendant to contact the court and arrange a time for an indigency hearing, and the lack of any response from the defendant, was a sufficient factual basis to sustain a determination that the defendant’s conduct purposefully delayed appellate review from that time until counsel entered of record in his behalf on October 19, 1990. “[T]rial judges must be allowed to determine, as a matter of fact, whether a convicted person’s conduct . . . has purposefully delayed review by an appellate court. And if there is evidence to sustain such a factual determination by a trial judge, such determination will not be reversed on review in the appellate court.” State v. Denson, 236 Ga. 239, 241 (223 SE2d 640) (1976).

After a hearing, the trial court dismissed the appeal under the authority of OCGA § 5-6-48 for failure to timely file a transcript as required by OCGA § 5-6-42.1 agree with the majority that the dismissal was based on the delay during the period of time the defendant was unrepresented by counsel. In so doing the trial court is required to exercise its legal discretion to determine whether the delay was unreasonable, and if so, whether it was also inexcusable and was caused by the appellant. Sellers v. Nodvin, 262 Ga. 205 (415 SE2d 908) (1992); Van Diviere v. Delta Airlines, 204 Ga. App. 573 (420 SE2d 27) (1992); OCGA § 5-6-48 (c), (f). The trial court’s finding that the failure to timely file the transcript was caused by the defendant’s conduct was a sufficient determination that the delay was purposefully caused by the defendant. The trial court made no finding, however, that the delay was unreasonable and inexcusable. See Sellers, supra (establishing requirements for a determination of unreasonableness); Van Diviere, supra. Accordingly, the dismissal must be reversed and the case remanded, not for an indigency hearing, but for the trial court to exercise its discretion and make findings on these issues. Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915) (1992); Georgia Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990).

Decided July 14, 1992.

Jon W. McClure, Melnick, Moore & Elliott, Larry M. Melnick, for appellant.

Keith C. Martin, Solicitor, for appellee.


text:
    A92A0743.
    LOVE v. THE STATE.
    (421 SE2d 125)
   Andrews, Judge.

Love appeals his conviction of one count of selling cocaine.

1. Love contends the court erred in refusing to grant his motion brought pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), claiming that the State deliberately discriminated against him on the basis of race by using nine of its ten peremptory strikes to exclude blacks from the jury.

In order to establish a prima facie case of purposeful discrimination for Batson purposes, a defendant must show that the prosecutor has exercised peremptory challenges to remove from the venire members of a particular race, and that these facts and other relevant circumstances raise an inference that the prosecutor used the practice of peremptory strikes to exclude veniremen from service on the petit jury on account of their race. Shaw v. State, 201 Ga. App. 438, 439 (1) (411 SE2d 534) (1991).

The actual voir dire is not part of the record here, but the State did stipulate that it used nine of its ten strikes to strike blacks from the jury. The defendant also asked the court to take judicial notice that he was black.

“However, the only portion of the record disclosing the racial composition of the panel, . . . , and the racial composition of the selected jury is in colloquy between defense counsel, the State, and the court during the defendant’s motion. . . . Colloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. [Cits.]” Shaw, supra at 439, 440. Since there was no supplementation of the record pursuant to OCGA § 5-6-41 (f), nor sufficient stipulation pursuant to OCGA § 5-6-41 (i), defendant has not carried his burden to prove his claim under Batson.

2. In his second and third enumerations, Love contends the court erred in allowing into evidence a piece of rock cocaine when the chain of evidence was not properly shown and in allowing the State to recall a witness to explain the alleged discrepancy in the testimony.

Undercover agent Smith purchased two pieces of rock cocaine on November 27, 1990. He drove up to a group of men on a corner and defendant Love asked him if he wanted “rock” when Smith said he was looking for something to smoke. When Smith answered affirmatively, Love took a match box out of his pocket and handed Smith one piece. Then, Love received a second piece from Hall, standing next to him, and Love also handed that to Smith, receiving a total of $40 for the two “twenties.”

At trial, Chief Davis initially testified that he received one piece of cocaine from agent Smith and delivered it to the crime lab. When State’s exhibit 1, a plastic bag containing two pieces of cocaine, was tendered, it was objected to on the ground of chain of custody. The court overruled the objection and allowed the State to recall Chief Davis, who explained that the second piece was labelled with the Hall case information, but was received by him at the same time as the Love piece.

There was no error. Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296) (1991) (chain of custody adequately shown); Floyd v. State, 156 Ga. App. 741, 742 (2) (275 SE2d 786) (1980) (trial judge controls witnesses and conduct of trial and it is always within his discretion to allow a witness to testify).

3. Finally, defendant contends his right of cross examination was improperly abridged because the court would not allow him to exhibit a document to Chief Davis for the purpose of refreshing his recollection.

Pretermitting the validity of the argument concerning refreshing a witness’ recollection with unadmitted evidence, defendant has shown no harm from the error, if any. Defendant sought to show Chief Davis the court record concerning the indictment and plea of Hall to drug charges. When the State objected to the chief’s testifying to the contents of the document without it being in evidence, defendant tendered the document, which was admitted without objection. The chief then testified to the disposition of the charges against Hall. Having shown no harm, there is no reversible error. Hall v. State, 198 Ga. App. 434, 436 (2) (401 SE2d 623) (1991).

Decided July 14, 1992.

Herbert W. Benson, for appellant.

David E. Perry, District Attorney, Ronnie A. Wheeler, A. Douglas Newsome, Assistant District Attorneys, for appellee.

The remaining argument made here was not made below and will not be considered here for the first time. Truelove v. State, 198 Ga. App. 14 (2) (400 SE2d 396) (1990).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

       Since the decision in Powers v. Ohio, 499 U. S. _ (111 SC 1364, 113 LE2d 411) (1991), it is no longer necessary that the defendant be a member of the protected class. The right also may be exercised in civil trials, Edmonson v. Leesville Concrete Co., 500 U. S. _ (111 SC 2077, 114 LE2d 660) (1991), and a defendant is also precluded from exercising his peremptory strikes in a racially discriminatory manner. Georgia v. McCollum, _ U. S. _ (112 SC 2348, 120 LE2d 33) (1992).

       The statements of counsel that there were 13 blacks on the panel of 42, or 30.9 percent, and 4 of the 12 seated were black, or 33-1/3 percent, also defeats defendant’s making out a prima facie case, even if the statements were accepted as evidence and assuming the continued viability of the numerical analysis. Weems v. State, 262 Ga. 101, 102 (fn. 3) (416 SE2d 84) (1992); Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988); Willis v. State, 201 Ga. App. 727, 728 (1) (411 SE2d 714) (1991). Here, the prosecutor made racially neutral explanations found acceptable to the court and we do not find this determination clearly erroneous. Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992).


author: Pope, Judge.

text:
    A92A0778.
    LEWIS v. THE STATE.
    (421 SE2d 339)
   Pope, Judge.

Clifford William Lewis was convicted on three counts of aggravated child molestation and three counts of aggravated sodomy. He appeals.

1. Defendant argues the trial court erred in its charge to the jury on aggravated sodomy because the charge, as well as the appellate decisions upon which the charge was based, does not correctly reflect the legislative intent of the aggravated sodomy statute, OCGA § 16-6-2. Thus, defendant argues, the charge violated his constitutional right of due process.

The trial court instructed the jury that “[s]exual acts directed to a child under the age of 14 years are in law forcible and against the will of the child.” Although defendant acknowledges that the charge is in accordance with the holdings of the appellate courts of this state, he argues on appeal that the aggravated sodomy statute, OCGA § 16-6-2, expresses no legislative intent to define all sodomy against a child under a specified age as aggravated sodomy and that such a charge is a denial of due process of law. However, no such objection was made to the charge at the trial of the case. The trial transcript reveals that a lengthy discussion transpired between the court and both attorneys concerning the age at which sodomy becomes aggravated sodomy as a matter of law due to the child’s legal inability to consent. After the judge declared that he would instruct the jury that the offense became aggravated sodomy when the victim was under the age of 14, the defendant’s attorney stated: “The only clarification I would offer to that is that I’m not acquiescing in it because I still think, Judge, that . . . .” The trial judge interrupted the attorney and no further objection was raised. Thus, the only objection raised appears to have been to the particular age specified by the trial judge. In any event, the defendant did not raise a due process objection and this court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised in the trial court. See Senase v. State, 258 Ga. 592 (372 SE2d 813) (1988); Rhodes v. State, 200 Ga. App. 193, 195 (2) (407 SE2d 442) (1991).

2. The trial court sentenced defendant to 15 years in prison, to be served concurrently, as to each of the six counts. The six counts consisted of one charge of aggravated sodomy and one charge of aggravated child molestation arising out of the same described act as to each of three children named in the indictment. Defendant contends that because the evidence showed the two offenses against each child arose out of the same act, they merged as a matter of fact and law and the trial court erred in sentencing him separately on each of the two offenses. We agree. “The aggravated child molestation charge and the aggravated sodomy charge in each [pair of counts as to each of the three victims] were both based on the same act of sodomy. . . . OCGA § 16-6-2 prohibits sodomy generally while OCGA § 16-6-4 prohibits sodomy involving a child. Accordingly, while it was proper to prosecute appellant ... for both aggravated sodomy and aggravated child molestation, he should have been convicted and sentenced ... for only one of the two rather than for both.” Dobbins v. State, 262 Ga. 161, 165 (4) (415 SE2d 168) (1992). See also LaPalme v. State, 169 Ga. App. 540 (1) (313 SE2d 729) (1984).

Although the evidence showed that, at least as to two of the three victims, defendant committed the illegal act charged in each pair of counts on more than one occasion, the indictment did not charge the defendant with separate and distinct acts but merely charged him with two different crimes for the same described act. Thus, this case is distinguishable from those cases in which we have upheld the conviction and sentencing for separate crimes and rejected the defendant’s claim of merger because the indictment charged the defendant with multiple, distinct offenses. See, e.g., Williams v. State, 195 Ga. App. 476 (3) (394 SE2d 123) (1990); Huggins v. State, 192 Ga. App. 820 (2) (386 SE2d 703) (1989). Accordingly, we hold defendant should have been sentenced for only one of the two offenses for which he was convicted as to each of the three victims.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Johnson, J., concur.

Decided July 14, 1992.

Richard L. Dickson, Russell C. Gabriel, Vicki E. Carter, D. Todd Wooten, for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.


text:
    A92A1200.
    BROWN v. THE STATE.
    (421 SE2d 340)
    Decided July 14, 1992.

      Johnston & Brannen, Sam L. Brannen, Jack B. Williamson, Jr., for appellant.

      Rene J. Martin III, District Attorney, for appellee.
   Pope, Judge.

Appellant/defendant Cecil Claude Brown appeals his conviction • for two counts of aggravated assault and possession of a firearm by a convicted felon. In his sole enumeration of error, defendant contends that the State failed to establish venue.

It was established at defendant’s trial held in Statesboro, which is located in Bulloch County, that the events leading to defendant’s arrest and subsequent conviction occurred at a place called Bubba’s located on 301 South just outside the Statesboro city limits. This court will take judicial notice that Statesboro is centrally located in Bulloch County and that locations just outside the city limits would therefore be located in Bulloch County. See Jackson v. State, 177 Ga. App. 718 (341 SE2d 274) (1986); Williams v. State, 162 Ga. App. 680 (1) (292 SE2d 560) (1982).

In this case venue was not contested at trial and therefore slight proof of venue is sufficient. Jackson, 177 Ga. App. at 719. The evidence discussed above was sufficient to allow a rational trier of fact to determine that venue was proper in Bulloch County. Id.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A0626.
    A92A0627.
    KEPPLER et al. v. BRUNSON. TUCKER v. BRUNSON.
    (421 SE2d 306)
   Birdsong, Presiding Judge.

Appellants, Robert P. Tucker, Jr., M.D., John P. Keppler, M.D., James W. Blevins, M.D., and Georgia Alcohol & Drug Associates, were granted interlocutory appeals after the trial court denied their motions for summary judgment. The issue on appeal concerns the circumstances under which health care providers may be held responsible for criminal acts of a patient, Mr. Cronic, who had been treated on a voluntary consensual basis before Cronic shot and wounded Mr. Brunson, shot and killed Mrs. Brunson (Cronic’s sister), and then killed himself. Appellants contend the trial court erred by denying their motions for summary judgment because the trial court found questions of fact existed on whether appellants had a right to control Mr. Cronic’s conduct and a duty to exercise that control to prevent harm to others.

Appellee William 0. Brunson’s complaints against appellants contend they are liable because they knew or should have known that Mr. Cronic was likely to cause bodily harm to others and they failed to exercise control with such reasonable care sufficient to prevent harm to Mr. and Mrs. Brunson. See Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693).

Dr. Tucker is a general practitioner who was treating Mr. Cronic, as a voluntary outpatient, for Mr. Cronic’s general medical problems, including his nervousness. In fact, Dr. Tucker saw Mr. Cronic the day before Mr. Cronic committed the acts which led to this litigation. Dr. Keppler, Dr. Blevins, and Georgia Alcohol & Drug Associates last treated Mr. Cronic for his addiction to prescription drugs some four months prior to these acts while he was a voluntary inpatient at Ridgeview Institute (Dr. Keppler) or a voluntary outpatient at Ridgeview Recovery Center (Dr. Blevins).

Appellants contend they had no reason to believe Cronic would do what he did, and that in any event they had no authority to control his actions because they saw him on a voluntary basis. Held:

Case Nos. A92A0626 & A92A0627

These appeals are controlled by our recent opinion in Ermutlu v. McCorkle, 203 Ga. App. 335, 336 (416 SE2d 792) (1992). “[U]nder Bradley Center, a two-part test has been established for determining under what circumstances a physician may be liable to a third party: (1) the physician must have control over the mental patient; and (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others.” Id. Like the patient in Ermutlu and unlike the patient in Bradley Center, at the time of the acts giving rise to this appeal, Mr. Cronic was not under control of any of the appellants. He was at all times a voluntary patient; at the relevant time he was an out-patient. Appellants “had no control of [Mr. Cronic] in the sense that [they] could claim legal authority to confine or restrain [him] against [his] will unless [he] met the criteria for involuntary commitment set forth in OCGA § 37-3-1 (9.1). Thus if [Mr. Cronic] had not acquiesced in the treatment plan prescribed by [them, they] could not have unilaterally imposed the treatment plan upon [him] except in the most extraordinary circumstances. OCGA § 37-3-163. This court has previously held in order for this duty to control to arise, the physician must be able to exercise control over the freedom of a mental patient, or claim the legal authority to confine or restrain the patient against his will. Applying these standards to the present [cases], we conclude that [appellants] neither had the right nor the ability to control [Mr. Cronic’s] conduct.” (Punctuation and citations omitted.) Id.

Decided June 25, 1992

Reconsideration denied July 15, 1992

Love & Willingham, Daryll Love, Robert P. Monyak, Kimberly L. Woodland, for appellants (case no. A92A0626).

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Milton B. Satcher III, for appellant (case no. A92A0627).

Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, Sullivan, Hall, Booth & Smith, Brynda S. Rodriguez, Allen & Peters, Hunter S. Allen, Jr., Dennis A. Elisco, Ted B. Herbert, for appellee.

Additionally, there is simply no evidence of record from which one could conclude that appellants knew or reasonably should have known that Mr, Cronic was likely to cause bodily harm to himself or to the Brunsons. Baldwin v. Hosp. Auth. of Fulton County, 191 Ga. App. 787, 789-790 (383 SE2d 154).

Therefore, the trial court erred by denying appellants’ motions for summary judgment. Accordingly, its judgment must be reversed, and, as appellants are not liable to Mr. Brunson as a matter of law, the trial court is directed to grant summary judgment to appellants.

Judgments reversed with direction.

Beasley .and Andrews, JJ., concur.


author: Cooper, Judge.

text:
    A92A0595.
    LEGACY HOMES, INC. et al. v. COLE.
    (421 SE2d 127)
   Cooper, Judge.

The trial court granted summary judgment for appellee, an attorney, on appellants’ claim for legal malpractice. In their sole enumeration of error, appellants contend summary judgment was erroneously granted because genuine issues of material fact remain.

Appellants Legacy Homes Inc. (“Legacy”) and Tina Playford (“Playford”), president and sole owner of Legacy, were builders of upscale houses in East Cobb. Playford had been a real estate agent and broker before becoming a builder. Duane Noel (“Noel”) contracted with appellants to purchase one of their newly-built houses in an all-cash transaction. The selling agent scheduled the closing and arranged for appellee to handle it as closing attorney. On the day of the closing, Noel appeared without the certified checks to pay for the house, but represented that he had the funds and would deliver them to appellee immediately after the closing. It is undisputed that by the time the parties sat down at the closing table to sign the papers, all parties — including Playford, who had attended many previous closings as an agent and broker as well as a builder — knew that the purchaser had not brought his cash. Nonetheless, Playford and the others present proceeded with the closing, with the understanding that Noel would go home and get the checks and return with them to appellee’s office immediately afterward. Appellants signed the warranty deed and gave it to appellee, who signed it as notary but did not put his seal on it or give it to Noel pending receipt of Noel’s checks. Appellee also disbursed the anticipated proceeds of the sale by issuing checks from his trust account, and all parties signed the settlement statement.

Noel never returned with the certified checks, and subsequently fled the jurisdiction. Appellee stopped payment on the checks issued from his trust account, and all were voluntarily returned except one which was issued to appellants in the amount of $18,540 and had been deposited immediately after the closing. After appellants notified appellee they intended to sue him for legal malpractice, appellee brought an action for declaratory judgment and return of the $18,540 retained by appellants, and appellants brought this counterclaim for legal malpractice. Appellants alleged that appellee did not act in accordance with appropriate standards when he allowed the closing to proceed despite the purchaser’s failure to have cash in an all-cash transaction, and when he subsequently stopped payment on the checks drawn against his trust account. Appellants further alleged that this “sale” to Noel prevented them from transferring the property to anyone else, ultimately resulting in foreclosure of the property and appellants’ inability to obtain any further loans. The trial court granted appellee summary judgment, finding that the record presented no issue of fact regarding the existence of an attorney-client relationship between appellee and appellants.

“ ‘It is generally held that an attorney-client relationship must be demonstrated before a plaintiff may recover in a legal malpractice suit .... This is essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence . . . .’ [Cit.]” Guillebeau v. Jenkins, 182 Ga. App. 225 (1) (355 SE2d 453) (1987). “[T]he basic question in regard to the formation of the attorney-client relationship is whether it has been sufficiently established that advice or assistance of the attorney is both sought and received in matters pertinent to his profession.” Huddleston v. State, 259 Ga. 45 (1) (376 SE2d 683) (1989) (citing Guillebeau, supra). In Guillebeau, this court held there was no attorney-client relationship between the seller of real property, an 83-year-old widow, and the closing attorney, even though the seller had suggested using the closing attorney’s firm, had used the firm for other matters in the past, and paid the closing attorney’s fees pursuant to the terms of the real estate contract. We based our conclusion primarily on the following factors: there was no contact between the seller and the closing attorney prior to the closing, the seller did not communicate to the closing attorney that she was looking to him for advice, and the closing attorney did not offer the seller any legal advice or assistance. Guillebeau, supra at 229-231.

These same factors are present in this case. It is undisputed that appellants and appellee had never met or spoken prior to the closing, that appellants never asked appellee for legal advice, and that appellee never offered any. Nonetheless, appellants claim an attorney-client relationship exists because the selling agent selected appellee to do the closing. Even assuming the selling agent made this selection as appellants’ representative, however, this fact does not change our analysis. For, as Guillebeau demonstrates, selection of the closing attorney is not enough to establish an attorney-client relationship where the purported client does not seek and the attorney does not give legal advice. Indeed, other factors make appellants’ position (that an attorney-client relationship existed) here weaker than that of the seller in Guillebeau: unlike the seller in Guillebeau, the individual seller here was an experienced businesswoman who had participated in many closings without legal counsel, and she had no history of any past dealings with appellee or his firm whatsoever. We therefore conclude that the trial court was correct in its determination that no attorney-client relationship existed between appellants and appellee as a matter of law.

Under certain circumstances, an attorney may owe a- duty to a party who is not his client, but who is a third-party beneficiary to an agreement between the attorney and his client. See Kirby v. Chester, 174 Ga. App. 881 (331 SE2d 915) (1985). For a third party to claim such a duty exists, “ ‘it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. (Cits.)’ [Cit.]” Id. at 884. In Kirby, a borrower hired the defendant-attorney to provide the plaintiff-lender with an “attorney’s certification and opinion” that the borrower had valid title to the property which would secure the loan, and that the plaintiff-lender’s lien would be the first lien against the property. Under these circumstances, this court concluded that, although the agreement was between the borrower and his attorney, it was clearly intended for the benefit of the lender. The actual work product was addressed to the lender, its purpose was to inspire confidence on his part, and the provision of a certification letter by its very nature sought to invoke reliance on the attorney’s expert opinion. Id. at 884. But none of these circumstances is present in this case, and there is nothing in the record to suggest that anything appellee did or was hired to do was for the benefit of appellants.

Decided July 15, 1992.

Fletcher & McCurdy, W. Phillip McCurdy III, William A. Fletcher, Jr., for appellants.

Smith, Gambrell & Russell, Margaret A. Murphy, David A Handley, Thomas E. McCarter, McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Linda Finley, for appellee.

Appellants’ reliance on Simmerson v. Blanks, 149 Ga. App. 478 (2) (254 SE2d 716) (1979) is equally unavailing. In Simmerson we held that an attorney may be liable under a voluntary or gratuitous agency theory where that attorney, representing a party other than the plaintiff, gratuitously states that he will take care of filing papers that it is plaintiff’s responsibility to file. Again, nothing in the record shows anything appellee did or said that could be construed as a voluntary offer to represent appellants or do anything on their behalf.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Beasley, Judge.

text:
    A92A0904.
    THE STATE v. BAXTON.
    (421 SE2d 129)
   Beasley, Judge.

The State appeals the trial court’s grant of appellee Baxton’s motion to suppress the fruits of a search and seizure.

Baxton appeared at a roadblock being conducted by the sheriff’s department and the county and city police departments. He was stopped and questioned by a deputy sheriff who had knowledge of Baxton’s prior drug charges. Baxton produced his valid driver’s license and proof of insurance upon request but refused to consent to a search of the vehicle. He did allow a drug dog to sniff his vehicle.

The deputy then asked him to drive his car into the parking lot of a nearby Y.W.C.A. As Baxton was stepping out of his vehicle, he alerted the officer to the fact that he had a gun in it. At that point, Baxton was arrested so that the deputy could verify his criminal record. The drug dog did not alert to any contraband and, although the radio dispatcher initially stated that there was a conviction against Baxton, the dispatcher informed the deputy several minutes later that Baxton had been given first offender status. The deputy allowed Baxton to leave, on the belief his possession of the gun was not illegal. The deputy did not smell any odor of alcohol on Baxton and did not detect anything about his behavior or physical appearance that led the deputy to conclude that he was intoxicated.

As the deputy was removing the handcuffs, Officer Batsel approached. He testified that he observed the odor of alcohol on Baxton’s breath and that it appeared he was under the influence of alcohol. He summoned a DUI task force officer to administer a breathalyzer test and a series of field sobriety tests. The breathalyzer registered .049 mgs., resulting in a presumption that Baxton was not under the influence of alcohol. OCGA § 40-6-392 (b) (1). Based on the other tests, which Baxton failed, the task force officer testified that it was his opinion that Baxton was under the influence. He was again formally placed under arrest and put in the back seat of a police car. During a search of his vehicle incident to arrest, plastic bags containing a white powdery substance which appeared to be cocaine were found in a bank bag in the glove compartment and on the front seat.

The indictment charged driving under the influence of alcohol and drugs (OCGA § 40-6-391) and violating the Controlled Substances Act (OCGA § 16-13-30). The motion to suppress evidence seized in the vehicle search is grounded on the Fourth and Fourteenth Amendments to the United States Constitution and “similar, provisions of the Constitution of the State of Georgia” which are otherwise unidentified.

After an evidentiary hearing on the motion, the trial court stated:

“[T]he officer comes across the road and says, yeah, that boy’s drunk, let’s give him a breath test. Well, he ain’t drunk on that one, let’s give him another one. He ain’t drunk yet, let’s give him a third one and he rises up to point zero four eight where there is a presumption that he is not under the influence of alcohol so they say, you’re free to go. No, I didn’t hear that. I didn’t hear that once they secured scientific evidence of non-intoxication he was told he was free to go.

Decided July 15, 1992.

Robert E. Keller, District Attorney, Andrei G. Howze, Assistant District Attorney, for appellant.

Sexton, Moody & Renehan, Lee Sexton, for appellee.

“Deputy Crisp, faced with a situation of a person he believes to be a convicted felon and knowledge that the person is armed, does everything he’s trained to do to protect himself, he retrieves the weapon, he handcuffs the suspect and searches the car with a dog which was all right since he had permission.

“There may even be a sign in the Y.W.C.A. parking lot that says all vehicles parked on these premises may be searched with dogs, I don’t know.

“But, I do know that the only person who has testified on behalf of the State that he actually saw this defendant drive has also testified he saw no evidence that he was intoxicated.

“The motion is granted.” An order to this effect was entered.

Citing Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283) (1987), among other cases, the State argues on appeal that it was not necessary that Office Batsel actually see appellee while he was driving the car, since the driving of an automobile while intoxicated may be shown by circumstantial evidence. In Phillips, the defendant’s vehicle was found parked on a road with its engine running and the lights on. The defendant was slumped over the steering wheel, passed out, and intoxicated. It was held that the evidence authorized a finding that he had driven the automobile while intoxicated.

The question is not whether appellee was driving his vehicle prior to his arrest for DUI. The question is whether the arrest was supported by probable cause that appellee was intoxicated or whether it was a pretext for an unlawful search. It is clear from the record that the trial court found that the arrest was not based on probable cause, because it did not credit the officers’ testimony that appellee appeared to be intoxicated or that he was in fact intoxicated.

This case is thus controlled by the oft-cited principle that “ ‘(t)he trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. (Cits.)’ [Cit.]” E.g., McShan v. State, 155 Ga. App. 518, 519 (2) (271 SE2d 659) (1980). The trial court’s decision was not clearly erroneous.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A91A0045.
    SOUTHERN GENERAL INSURANCE COMPANY v. HOLT et al.
    (421 SE2d 346)
    Decided July 16, 1992.

      Freeman & Hawkins, Paul M. Hawkins, Edward M. Newsom, Michael J. Goldman, for appellant.

      Kelly, Denney, Pease & Allison, Allen C. Levi, Charles A. Gower, for appellees.

      Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, amicus curiae.
   Sognier, Chief Judge.

The Supreme Court in Southern Gen. Ins. Co. v. Holt, 262 Ga. 267 (416 SE2d 274) (1992) reversed Division 6 of the judgment of this court in Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759 (409 SE2d 852) (1991), in which we affirmed the trial court’s judgment awarding punitive damages to Holt. Therefore, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, and the judgment of the trial court is affirmed in part and reversed in part in accordance with the Supreme Court’s opinion.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A91A1411.
    SIZEMORE v. THE STATE.
    (421 SE2d 346)
    Decided July 16, 1992.

      John H. Tarpley, for appellant.

      Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Gregory J. Lohmeier, Assistant District Attor

      neys, for appellee.
   McMurray, Presiding Judge.

The Supreme Court of Georgia in Sizemore v. State, 262 Ga. 214 (416 SE2d 500) (1992), having reversed this Court’s prior judgment in this case wherein we affirmed the trial court, the judgment of this court in Sizemore v. State, 201 Ga. App. 431 (411 SE2d 505), is vacated, and the judgment of the trial court is hereby reversed and the case is remanded in accordance with direction as prescribed in Sizemore v. State, 262 Ga. 214, supra.

Judgment reversed and case remanded with direction.

Sognier, C. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge. Pope, Judge, Beasley, Judge,

text:
    A92A0596.
    HOLT v. THE STATE.
    (421 SE2d 131)
   Birdsong, Presiding Judge.

Terry Holt appeals out-of-time following his March 29, 1991 plea of guilty to the offense of child molestation. On an earlier appeal (Case No. A92A0059, in which the out-of-time notice of appeal was filed September 12, 1991), we remanded the case for consideration whether appellant could represent himself and whether appellate counsel’s request to withdraw should be granted, and we specified that the appeal could then be reinstated by an out-of-time appeal. On remand the trial court ruled that appellant could represent himself on appeal and appellate counsel could withdraw. The trial court expressly found also that following his plea of guilty and sentence to ten years imprisonment, appellant made filings complaining of ineffective assistance of counsel during his guilty plea and waiver of jury trial; new counsel was appointed who, on September 12, 1991, obtained permission for an out-of-time appeal; however, on September 13, 1991, and twice again appellant notified the trial court that he did not want an attorney on his appeal, whereupon the trial court allowed appellate counsel to withdraw.

Following this November 25, 1991 order appellant pro se filed a notice of appeal from “the judgment of conviction and sentence.” Held:

1. After filing this notice of appeal out-of-time on December 2, 1991, thereafter on December 9, 1991, appellant filed an inaptly titled “motion for out-of-time appeal” in the trial court, requesting the trial court to issue an order allowing an out-of-time appeal to be filed “due to newly discovered evidence and under some very unusual circumstances.” When, after the trial court’s ruling that appellant could represent himself in his appeal, appellant filed his notice of appeal from the judgment of conviction upon guilty plea and sentence, his notice of appeal operated to remove jurisdiction from the trial court. Dalton Amer. Truck Stop v. ADBE Distrib. Co., 146 Ga. App. 8 (245 SE2d 346). The trial court was therefore without jurisdiction to consider appellant’s subsequently filed motion as to newly discovered evidence.

2. The trial court did not err in allowing appellate counsel to withdraw and in permitting appellant to represent himself. See Dobbins v. Dobbins, 234 Ga. 347 (216 SE2d 102); Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574).

3. The enumerations of error framed by appellant are that the trial court erred in not allowing him to examine his defense and prosecution witnesses; that the trial court erred in not affording him the right to present his wife’s prior statement in evidence; that prosecutorial misconduct resulted in admission of false statements in the trial to force a guilty plea; and that the prosecution threatened appellant and kept him from testifying before a jury.

The issues presented by appellant are equivalent at least to an assertion that he was denied effective assistance of trial counsel and that his waiver of trial and guilty plea were involuntary. The trial court’s order following the first remand of this case does not disclose that appellant waived consideration of the claim, and we will not hold that he did, inasmuch as he raised it pro se in the trial court prior to any appeal and he sought a procedure wherein the court could resolve the issues raised, he raised it pro se in his first appeal when appointed counsel filed a notice of appeal without having obtained a hearing on the issue in the trial court, and he raised it again in this second appeal.

It is settled that where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115); Kinney v. State, 199 Ga. App. 354 (2) (405 SE2d 98); In the Interest of G. G. L., 199 Ga. App. 357 (405 SE2d 100); Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863). The law in these cases is that an evidentiary hearing must be held at the earliest practicable moment. Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664). In Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922), the Supreme Court held that “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.” But, in that case the Supreme Court remanded the matter for an evidentiary hearing because, “[Ponder] did raise the issue of ineffective assistance of counsel prior to the appeal: albeit unartfully and incompletely ... it would be manifestly unfair to deny appellant an opportunity to follow the procedure we have set out above”; the case was remanded “for the purpose of permitting [Ponder] to file a motion for new trial.” Id. at 842.

A motion for new trial is not the proper vehicle for contesting a guilty plea; rather it may be challenged for the first time on appeal. See Agerton v. State, 191 Ga. App. 633 (382 SE2d 417), citing Smith v. State, 253 Ga. 169 (316 SE2d 757).

The court in Ponder had difficulty with the “manifest unfair [ness]” of holding that Ponder’s claim had been waived when in fact he had raised it prior to appeal. Compare Meriwether v. State, 204 Ga. App. 113 (418 SE2d 451) (1992), where the claim was raised for the first time on an out-of-time appeal. The goal, according to the Supreme Court in Ponder, is that “at the earliest practicable moment” (id. at 840) appellant “must present the issue of ineffective assistance of counsel to the trial court” (id. at 842); Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1). So, the issue may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel (White v. Kelso, 261 Ga. 32 (401 SE2d 733), citing Johnson v. State, 259 Ga. 428 (383 SE2d 115)) but, where new counsel amends a motion for new trial without raising the issue of ineffective assistance so that it may be heard in the trial court, the issue is waived. White, supra, citing Thompson v. State, 257 Ga. 386 (359 SE2d 664). As to this, the Supreme Court said in White at 33, a habeas corpus case, that “[a] pro se petitioner is in a position similar to that of new counsel,” and when that pro se petitioner made his first appearance in his own behalf, the claim of ineffective assistance of counsel had “already been waived by his appellate counsel.” Id. However, the Supreme Court held that the procedural bar to the claim “does not apply when the petitioner shows cause and prejudice as described in Black v. Hardin [255 Ga. 239 (336 SE2d 754)], or when the procedural bar will work a miscarriage of justice.” White, supra at 33. The court concluded that appellant showed neither “cause for appellate counsel’s failure to raise the claim [nor] any prejudice arising therefrom. Further, the record does not reflect any miscarriage of justice. Finally, petitioner does not argue that his appellate counsel rendered ineffective assistance.”

This statement just quoted appears to recognize a fundamental problem in holding that ineffective appellate counsel may waive a defendant’s claim of ineffective assistance of trial counsel. If the defendant has a right to effective assistance of trial counsel, then it is hard to see why he would not have a right to effective assistance of appellate counsel. If it is deemed that a defendant’s appellate counsel, by ineffectiveness, effectively waived his right to claim ineffective assistance of trial counsel, this in itself would seem to work a manifest “unfairness”; hence, the procedure for raising the claim has been modified until finally the defendant may be allowed to have a hearing on claim of ineffectiveness of trial counsel simply by showing “miscarriage of justice,” cause for the failure to raise the claim or prejudice. See White at 33; see also White at 32, where the rule is now stated not in context of “trial” and “appellate” counsel, but in context of “new counsel” and “previous counsel.”

The claim of ineffective assistance of trial counsel with respect to voluntariness of this guilty plea was not made in this case for the first time on appeal. It was first made in the trial court by appellant pro se by filings and motions filed in September, 1991, six months after'his guilty plea hearing. Thereafter, newly appointed (appellate) counsel brought the case to appeal without invoking a hearing on the claims and issues which appellant pro se had already raised, “albeit unartfully.” Ponder, supra at 842 (2). The record shows, however, that appellant pro se filed a motion in superior court entitled “Motion to Stay” four days after appellate counsel had filed a notice of appeal. In this motion appellant asked for a stay of an out-of-time appeal “[in part because] defendant may not feel the . . . pleadings [filedvby appellate counsel including notice of appeal] are the proper remedy at this stage to file due to newly discovered evidence and under some very unusual circumstances.” In this motion which attempts to reassert his claim as to ineffective assistance of trial counsel, appellant pro se also requested the court to “properly and adequately make essential preparation to determine the appropriate avenue to remedy the unconstitutional error.” In this clear if unartful request, made after appointed appellate counsel had filed a notice of appeal without ever having talked to appellant (according to an affidavit filed by appellant with his “Motion to Stay”), appellant seeks a remedy from the trial court which could only be afforded by a hearing. We thereafter remanded the case for determination whether appellant could represent himself. Although the motion requesting the court to “adequately make essential preparation to . . . remedy the unconstitutional error” was filed after notice of appeal when the trial court did not have jurisdiction of the case, the trial court had notice of it in the record.

We are hard put to say appellant never presented to the trial court his claim of ineffective assistance of counsel, or that he did not do so at the earliest practicable opportunity (see White, supra; Ponder, supra; Johnson, supra), and we are hard put to say the claim was waived by appellate counsel when the appellant pro se, though unartfully (Ponder, supra), not only raised the claim in the trial court but also sought a procedure wherein to resolve and remedy the errors he claimed. In its order on remand determining that appellant could represent himself, the trial court expressly noted his claim of ineffectiveness of counsel and did not indicate that appellant had waived it. On reinstatement of the appeal, appellant pro se again raises the claim. The purpose of the procedural rules developed in these cases is consistent: to ensure that the issue of ineffective assistance of counsel is raised at the first possible stage of post-conviction review so that the matter may be promptly resolved by the trial judge. White, supra at 32; Ponder, supra at 842. We will not hold that appellant waived the issue in this case. The claim raised by appellant pro se in the trial court prior to any appeal, and as to which he sought a hearing and has consistently reasserted pro se, requires a remand for an evidentiary hearing. See Dawson v. State, 258 Ga. App. 380 (369 SE2d 897); Johnson, supra; Weems, supra at 430. As to the issues on the hearing on effectiveness of trial counsel in connection with a guilty plea, see Hatcher v. State, 259 Ga. 274 (1) (379 SE2d 775).

4. The State has failed to file a brief in this appeal and has therefore made no attempt to meet the contentions raised by appellant. In view of his claims of ineffective assistance of trial counsel, it cannot be determined from the transcript of the guilty plea hearing that his plea was voluntary. As to voluntariness of guilty pleas generally, see Morgan v. State, 191 Ga. App. 367, 368 (381 SE2d 583); Agerton v. State, 191 Ga. App. 633, supra; and Dean v. State, 177 Ga. App. 123, 125 (338 SE2d 711). The transcript shows inter alia that appellant made his plea of guilty upon a certain agreement by the prosecution, and the record does not show whether this agreement was fulfilled. Trial counsel stated he had no idea of the whereabouts of the victim and her mother (appellant’s wife) and said, “I have not been in contact with them.” The district attorney rejoined that he had talked to the child but “as far as the mother, I really don’t know.” Appellant now claims he would not have given up his right to subpoena these persons if he had known they could be made available to testify at a trial. In view of the State’s failure to file a brief, we cannot hold the State has borne its burden to prove appellant’s plea was voluntarily and freely made. The case is remanded as above stated, for proceedings not inconsistent with this opinion, to address the matters fairly raised by appellant pro se, in particular so that appellant can file a motion for new trial to obtain a hearing on his claim as to ineffective assistance of counsel and his other justiciable claims. See Ponder, supra.

Case remanded with direction.

Sognier, C. J., McMurray, P. J., and Cooper, J., concur. Pope, J., concurs specially. Carley, P. J., Beasley, Andrews and Johnson, JJ., dissent.

Pope, Judge,

concurring specially.

I agree with all that is said by the majority in this case including the majority’s conclusion that the case should be remanded so that a hearing can be held on defendant’s ineffectiveness of counsel claim. However, I write separately in order to enunciate specifically my disagreement with the dissent and also to urge that the case of Thompson v. State, 204 Ga. App. 220 (419 SE2d 541) (1992), as more particularly set out below, should be disapproved. I would also urge an alternative to the circuitous appeal resulting from the decision in Thompson.

The dissent holds that the only procedural avenue available to a defendant to contest the validity of a guilty plea after the term of court in which the plea was entered has expired is a habeas corpus proceeding. That holding, however, overlooks the fact that the Georgia appellate courts have recognized the procedure of allowing a defendant to challenge his guilty plea via an out-of-time (and out-of-term) appeal. See, e.g., Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991) Moreover, “[t]he State of Georgia recognizes the right to effective assistance of counsel at trial and on first appeal as of right ‘and has provided for ameliorative relief in the form of an out-of-time appeal.’ Cannon v. State, 175 Ga. App. 741 (334 SE2d 342) [(1985)].” Brantley v. State, 190 Ga. App. 642, 643 (1) (379 SE2d 627) (1989). In Hunter v. State, supra, the defendant had entered a guilty plea to murder and other offenses in 1974. In 1990, he filed a “Motion for Out-of-Time Appeal.” In reaching the result in Hunter, the Georgia Supreme Court expressly recognized that “[a]n out of time appeal occasionally is appropriate where, due to ineffective assistance of counsel, no appeal has been taken. (Cit.)” Hunter, 260 Ga. at 762. However, the court went on to hold that the defendant in that case was not entitled to an out-of-time appeal on this basis because his ineffective assistance claims had been decided adversely to him in a previous habeas proceeding. Id. However, the court did not intimate that defendant could raise his claims only in habeas proceedings, only that that issue had already been decided in that case. See also Holbrook v. State, 171 Ga. App. 449 (320 SE2d 637) (1984) (upholding the trial court’s denial of defendant’s request for out-of-time appeal, made approximately three years after the entry of his guilty plea, because defendant did not claim substantive or technical ineffectiveness).

The dissent, however, correctly notes that the procedure recognized in Thompson v. State, 204 Ga. App. 220, supra, sanctions circuitous appeals in cases in which motions for out-of-time appeals are granted. Although the procedure adopted in Ponder v. State, 260 Ga. 840, 841 (400 SE2d 922) (1991) is not strictly applicable to the situation in the case at bar, inasmuch as a motion for new trial is not a proper vehicle to challenge a guilty plea, I believe the spirit of Ponder should be followed and a defendant should be allowed to raise the issue of trial counsel’s ineffectiveness in the trial court within 30 days following the grant of his motion for out-of-time appeal, and to request an evidentiary hearing on that issue. If the trial court rules adversely to defendant he should then be allowed, within 30 days, to file his out-of-time appeal to the appropriate appellate court. The use of this procedure in a case involving an out-of-time appeal challenging a guilty plea will serve the same two purposes that it did in Ponder in the post-conviction context, in that it “will settle the question of when a person pursuing an out-of-time appeal must present the issue of ineffective assistance of counsel to the trial court and will meet the goal expressed in Lloyd v. State, 258 Ga. 645, fn. 1 (373 SE2d 1) (1988), that such claims be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas (corpus) court somewhere down the road.” Ponder, 260 Ga. at 842 (1). Furthermore, it solves the dilemma of how to avoid circuitous appeals on this issue, since if the defendant does not promptly raise the issue of counsel’s effectiveness during the 30-day period after his motion for an out-of-time appeal is granted, he will be deemed to have waived that issue on appeal.

As in Ponder, the defendant in this case raised the issue of ineffective assistance of counsel, albeit unartfully and incompletely, in pleadings filed with the trial court before his notice of out-of-time appeal was filed. Consequently, this case should be remanded to the trial court so that a hearing can be held on defendant’s claims concerning his counsel’s effectiveness.

Beasley, Judge,

dissenting.

In essence, appellant is challenging the validity of his guilty plea, claiming that ineffective assistance of counsel infected it. A plea of guilty must be made knowingly, voluntarily, and with an understanding of the consequences. Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). See Haggins v. State, 259 Ga. 188 (380 SE2d 711) (1989), which applies this. If a defendant did not receive effective assistance of counsel, the plea is not intelligently and voluntarily made. McBryar v. McElroy, 510 FSupp. 706 (N.D.Ga. 1981); Logan v. State, 256 Ga. 664, 665 (352 SE2d 567) (1987). See Kight v. State, 158 Ga. App. 698, 699 (282 SE2d 176) (1981).

If a defendant believes that he was deprived of effective assistance of counsel in entering his plea, he has a right to withdraw it “[a]t any time before judgment is pronounced.” OCGA § 17-7-93 (b). Even after that time, a motion to withdraw may be made in term, but it addresses itself to the sound discretion of the trial court. State v. Kight, 175 Ga. App. 65 (1) (332 SE2d 363) (1985). See also Right v. State, supra, 158 Ga. App., where the issue was whether counsel had effectively represented defendant, and Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989), where the grounds of the motion constituted a challenge to the effectiveness of counsel.

“Where the question on appeal [of a judgment entered on a guilty plea] is one which may be resolved by facts appearing in the record . . . , a direct appeal will lie.” Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). This would include an out-of-time appeal, if a motion for such is granted by the trial court. See Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991), where it was recognized that a ground for allowing a late direct appeal is the failure of defendant’s counsel to file a timely appeal. Otherwise, “the only prescribed means for the appellant’s filing the motion to withdraw his guilty plea, after the term of court at which the judgment of conviction was rendered, [is] through habeas corpus proceedings.” Conlogue v. State, 243 Ga. 141, 142-143 (253 SE2d 168) (1979). See State v. Kight, supra, 175 Ga. App. at 66; Staley v. State, 184 Ga. App. 402 (361 SE2d 702) (1987); Bowens v. State, 194 Ga. App. 391 (390 SE2d 634) (1990).

Decided July 16, 1992.

Habeas corpus is the remedy in this case, not a remand. The issues sought to be raised, as summarized at the beginning of Division 3 of the majority opinion, are not subject to direct appeal because they cannot be resolved “by facts appearing in the record.” Smith, supra. Compare Lewis v. State, 191 Ga. App. 509 (382 SE2d 207) (1989). Since Holt’s challenge to the effectiveness of counsel would require additional inquiry and the presentation of evidence, it is not subject to a direct appeal, and the judgment of conviction and sentence should be affirmed.

The procedure created in Thompson v. State, 204 Ga. App. 220 (419 SE2d 541) (1992), and followed in this case, delays finality of judgments based on guilty pleas by permitting an appeal, an automatic remand, and another appeal after a hearing and adverse decision by the trial court, when a defendant does not challenge the validity of his plea within the term in which it is entered and the validity as to effectiveness of counsel may not be tested on the existing record. If the term goes by before defendant realizes he or she wishes to complain of counsel’s representation, “the earliest practicable opportunity” for a hearing on the issue is a habeas corpus proceeding, not a circuitous appeal and especially an out-of-time appeal and eventual remand for a hearing before the issue is addressed.

Thompson, moreover, appears to present an inconsistency. If the plea is held to be valid, as was done in Division 1 of that opinion, then how at the same time can it be open to a charge of invalidity because possibly infected by inadequate counsel?

I am authorized to state that Judge Andrews and Judge Johnson join in this dissent.

Terry Holt, pro se.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

       I agree that the only avenue available to a defendant who has been denied the right to file an out-of-time appeal by the trial court (and that denial has been affirmed by the appellate courts) is a habeas proceeding.

       I also agree with the dissent’s observation that Thompson appears to be inconsistent to the extent that it holds, in Division 1, that the plea is valid but then goes on, in Division 2, to remand the case to the trial court so that a hearing can be held on defendant’s ineffectiveness claim. Consequently, I would disapprove of the holding in Thompson, to the extent that it suggests that a determination on the validity of the plea can be made prior to the determination of whether the plea was entered with effective assistance of counsel, when such issue is properly raised by the defendant.

       Dicta appearing in Conlogue to the effect that there is no appeal from a judgment entered on a guilty plea was disapproved in Smith.