White v. State

Henry J. White was indicted by a Floyd County grand jury for possession of cocaine, two counts of obstruction of an officer, and driving under the influence. The jury acquitted him of driving under the influence and convicted him of the remaining counts.1 His trial counsel filed an untimely motion for new trial, but then withdrew. White obtained new counsel, who filed both an amended motion for new trial asserting a claim of ineffective assistance of counsel and a motion for out of time appeal. The motion for out of time appeal was granted with the provision that a notice of appeal be filed within ten days. This appeal followed before any ruling was obtained on the pending motion for new trial.

1. We first must address the question of White’s failure to obtain an evidentiary hearing in the trial court on his claims of ineffective assistance of counsel. The proper procedure to follow in the case of an out-of-time appeal was set forth plainly by the Georgia Supreme Court over ten years ago: