Peavy v. State

Johnson, Judge. Anthony Peavy did not directly appeal his 1990 burglary conviction, but was granted an out-of-time appeal in a habeas corpus proceeding. After the out-of-time appeal was granted, Peavy did not file a motion for a new trial, but instead filed the instant appeal, in which his sole claim is that his trial counsel was ineffective. “[A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]” Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991); see also Maxwell v. State, 262 Ga. 541, 542-543 (3) (422 SE2d 543) (1992). Because Peavy’s appellate counsel failed to pursue a motion for a new trial after the grant of the out-of-time appeal, the issue of ineffective assistance of trial counsel is waived and cannot be asserted on appeal. Snell v. State, 203 Ga. App. 27, 28 (1) (416 SE2d 360) (1992); compare King v. State, 208 Ga. App. 77 (430 SE2d 640) (1993). Judgment affirmed. Beasley, P. J., and Andrews, J., concur. [80] Decided April 29, 1994. Karen E. Beyers, for appellant. Thomas J. Charron, District Attorney, Don T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.