David Michael Clayboss v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 11, 2016

The Court of Appeals hereby passes the following order: A16A0017. CLAYBOSS v. THE STATE.

Appellant in the above-referenced case was convicted following a jury trial on August 13, 2013 and was sentenced a few months later. On December 16, 2013, appellant’s trial counsel filed a motion, stating that appellant was indigent and requesting that the court appoint new appellate counsel because trial counsel would no longer be representing appellant. On January 6, 2014, appellant, now proceeding pro se, filed a similar motion, requesting new counsel, but the trial court took no action upon this motion until February 2, 2015, when it granted appellant’s request and appointed appellate counsel. Shortly thereafter, appellate counsel moved for an out-of-time appeal, stating that trial counsel never filed motion for new trial or a notice of appeal before terminating his representation. On May 27, 2015, the trial court granted appellant’s motion for an out-of-time appeal, and subsequently, appellant filed a notice of appeal. On appeal, appellant contends, inter alia, that his trial counsel rendered ineffective assistance by refusing to allow appellant to testify in his own defense. However, given the fact that “this appeal was appellant’s first opportunity to raise the issue of ineffective assistance of trial counsel, we will remand the case for an evidentiary hearing on that claim.” Hung v. State, 282 Ga. 684, 685 (2) (653 SE2d 48) (2007) (punctuation omitted). Accordingly, it is hereby ordered that this case be remanded to the trial court so that the court can conduct an evidentiary hearing on appellant’s ineffective assistance of counsel claim. It is further ordered that if the trial court finds that appellant was denied effective assistance of trial counsel, appellant shall be entitled to a new trial; however, if the trial court finds that appellant was not

denied effective assistance of trial counsel, then appellant will be entitled to file a notice of appeal within 30 days of the entry of any such adverse order.

Court of Appeals of the State of Georgia 02/11/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.