Appellee Christopher Jones was convicted of the aggravated assault and kidnapping of Cindy Hurst, the former girlfriend of Jones, and the kidnappings of Hurst’s daughters, six-year-old Brianna and eighteen-month-old Ja-Nya.1 On motion for new trial the trial court upheld appellee’s aggravated assault conviction but granted appellee a new trial on the three kidnapping convictions on the basis that appellee received ineffective assistance of counsel. Notwithstanding its grant of a new trial on the kidnapping charges, the trial court also found that the mandatory 25-year sentence set forth in OCGA § 16-5-40 b 2 for kidnapping of a child under the age of 14 constituted cruel and unusual punishment as applied to appellee. The State filed an application for interlocutory appeal, which this Court granted. See State v. Ware , 282 Ga. 676 653 SE2d 21 2007 State’s right to appeal from order granting motion for new trial under OCGA § 5-7-1 a 7 is subject to interlocutory appeals procedures.2 For the reasons that follow, we reverse in part and vacate in part. 1. In its order granting appellee a new trial on the kidnapping charges, the trial court found that trial counsel performed deficiently by failing to cross examine Hurst adequately, by failing to cogently argue on behalf of the directed verdict motion made as to those charges and by presenting only perfunctory closing argument to the jury. The trial court then concluded that there was a reasonable probability that the outcome of the trial would have been different had counsel performed effectively. See Strickland v. Washington , 466 U. S. 668 104 SC 2052, 80 LE2d 674 1984.
The State contends that the trial court’s grant of a new trial was error because appellee did not raise this issue below. A careful review of the record reveals that the State is correct that appellee did not assert that trial counsel was ineffective on these particular grounds in his timely-filed motion for new trial, in his amendment thereto filed by conflict-free counsel or in the course of the hearing on his new trial motion. Since the motion for new trial was upon certain enumerated grounds only, there was no question before the court as to the error specified by the trial court in its order. Cit. While the court may grant a new trial on its own motion within 30 days from entry of the judgment current OCGA § 5-5-40 h; cit., the judgment here was entered on July 11, 2007, and the new trial was not granted until October 31, 2007, which was more than 30 days from entry of judgment after the term had expired. We know of no authority which would allow the court to grant a new trial on an unspecified ground in these circumstances.Darby v. Commercial Bank , 135 Ga. App. 462, 463 2 218 SE2d 252 1975. Appellee having been represented by conflict-free counsel at the time the amendment to his motion for new trial was filed and no claim of ineffective assistance of counsel having been raised in regard to the kidnapping charges, the issue must be deemed waived. See generally Garland v. State , 283 Ga. 201, 202 657 SE2d 842 2008 defendant required to raise any issue of ineffective assistance of trial counsel at earliest practicable moment to avoid it being deemed waived. The trial court erred by granting appellee a new trial on this basis.
