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Lawskills.com Georgia Caselaw
HUFF v. THE STATE.
A89A0725.
BANKE, Presiding Judge.
Burglary. Fayette Superior Court. Before Judge Whalen.
On appeal from his conviction of burglary, the appellant contends that his character was improperly placed in issue and that he was denied effective assistance of counsel. Held:
2. The appellant was represented by appointed counsel at trial. Following his conviction, he filed a pro se notice of appeal, as well as an affidavit of poverty and a motion for appointment of counsel to represent him on appeal. Appellate counsel was thereafter appointed and has raised for the first time on appeal the issue of the effectiveness of counsel during the trial.
As no motion for new trial was filed in the case, the trial court has not yet had an opportunity to consider this issue. In Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 288) (1982), the Georgia Supreme Court held that an enumeration of error asserting ineffective assistance of counsel would not be considered under such circumstances. This holding has never been overruled, although the Court has since issued a series of differing rulings dealing with the consideration to be given an enumeration of error challenging the effectiveness of trial counsel where the defendant obtained new counsel following the trial, but such counsel either failed to raise the issue in an amended motion for new trial or did raise the issue but failed to request an evidentiary hearing on it. See Brown v. State, 251 Ga. 598 (3) (308 SE2d 182) (1983); Smith v. State, 255 Ga. 654 (3) (341 SE2d 5) (1986); Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664) (1987); Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). Currently, the rule appears, once again, to be that a challenge to the effectiveness of trial counsel will not be considered on appeal where it has not been raised in the trial court in such a manner as to enable the court to rule on it. Accordingly, inasmuch as no challenge to the effectiveness of counsel was made in the trial court in the present case, this enumeration of error presents nothing for review.
W. Fletcher Sams, District Attorney, William H. Stevens, Assistant District Attorney, for appellee.
Judith Y. Shelnutt, for appellant.
Dilmus Huff, pro se.
DECIDED MAY 5, 1989.
Thursday May 21 11:12 EDT


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