Opinion
A90A0932.
DECIDED JUNE 25, 1991.
Child molestation. Fulton Superior Court. Before Judge Langham.
Steven W. Reighard, Kenneth Kondritzer, Maria T. Gonzalez, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Patsy Y. Porter, Carl P. Greenberg, Assistant District Attorneys, for appellee.
In the original appearance of this case we declined to address the issue of the alleged ineffectiveness of defendant's trial counsel holding that issue had been waived pursuant to the holding in Ponder v. State, 194 Ga. App. 446, 450 (10) ( 390 S.E.2d 869) (1990). Williams v. State, 198 Ga. App. 214 (3) ( 400 S.E.2d 638) (1990). Subsequent to our decision in Williams the Supreme Court on certiorari reversed the judgment in Ponder with direction that we remand the case "to the trial court for the purpose of permitting [defendant] to file a motion for new trial [raising the issue of ineffective assistance of trial counsel]." Ponder v. State, 260 Ga. 840, 842 (2) ( 400 S.E.2d 922) (1991). On February 28, 1991, the Supreme Court granted the application for certiorari in Williams and remanded the case to this court with direction that we reconsider Division 3, in light of the reversal of the judgment in Ponder. "Accordingly, our original judgment is vacated and the judgment of the trial court is hereby affirmed with direction that within 30 days of the date that this court's remittitur is filed in the trial court, [defendant] shall be entitled to file a motion for new trial limited to the issue of the alleged ineffectiveness of his trial counsel. If [defendant] files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that [defendant] was denied effective assistance of trial counsel, he will be entitled to a new trial. If [defendant] files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that [defendant] was not denied effective assistance of trial counsel, he will be entitled to file a notice of appeal within 30 days of the entry of such an adverse order." Ponder v. State, 199 Ga. App. 630 ( 406 S.E.2d 143) (1991).
Judgment affirmed with direction. Andrews, J., concurs., Beasley, J., concurs specially.
DECIDED JUNE 25, 1991.
I reluctantly concur. See Kinney v. State, 199 Ga. App. 354, 355 ( 405 S.E.2d 98) (1991) dissent; OCGA § 5-5-41. Cf. Shavers v. State, 200 Ga. App. 76 ( 406 S.E.2d 803) (1991) special concurrence.