Gibbs v. State
| Decision Date | 02 May 1994 |
| Docket Number | No. A94A0396,A94A0396 |
| Citation | 213 Ga.App. 117,443 S.E.2d 708 |
| Parties | GIBBS v. The STATE. |
| Court | Georgia Court of Appeals |
Tony L. Axam, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Carl P. Greenberg, and R. Andrew Weathers, Asst. Dist. Attys., for appellee.
In 1978 Gibbs was convicted of one count of rape, OCGA § 16-6-1, and two counts of armed robbery, OCGA § 16-8-41. He was sentenced to life imprisonment and two twenty-year terms to be served consecutively. Almost five months after judgment, he filed a pro se motion for out-of-time appeal, which the court treated as an application for habeas corpus relief and denied. Application for habeas relief was made in 1990, but the court found that all claims either were or could have been raised in what it regarded as the prior habeas application and denied relief. The next year Gibbs filed a pro se application for a writ of habeas corpus in federal court. On September 15, 1992, that court ordered that a writ would issue "unless the State within 120 days appoints counsel for Applicant and grants him leave to file an out-of-time appeal."
Leave was granted, as was leave to file a motion for new trial based upon a claim of ineffectiveness of counsel. Due to its timing, it constituted an extraordinary motion, as permitted by OCGA § 5-5-41. See King v. State, 208 Ga.App. 77, 81-83, 430 S.E.2d 640 (1993) (Beasley, P.J., concurring specially). It could not have been an "out-of-time" motion as such because the law prohibits extensions of time for motions for new trial. OCGA § 5-6-39(b).
After an evidentiary hearing on the motion, it was denied. A notice of appeal from this denial alone finally brings the case to this court. The notice of appeal specifically states it is from the order denying the motion and makes no reference to the judgment of conviction. OCGA § 5-6-35(a)(7) requires such an independent appeal to proceed by application. Since a direct appeal was permitted but not properly taken, the appeal must be dismissed. Hooks v. State, 210 Ga.App. 171, 435 S.E.2d 617 (1993). In the interest of finality and to avert a claim of ineffective appellate counsel, we will consider the enumerations as though they were properly before the court.
1. Gibbs asserts that his trial counsel was ineffective. " '[D]efendants seeking to show that their counsel was ineffective must show: 1) their counsel's performance was deficient and 2) ... the deficient performance prejudiced the defense. (Id.) at 687.' [Cits.] The failure to establish either element of the test will result in the denial of defendant's claim of ineffective counsel. [Cit.] [Cit.]" Scapin v. State, 204 Ga.App. 725, 420 S.E.2d 385 (1992). Ferrell v. State, 261 Ga. 115, 119, 401 S.E.2d 741 (1991).
Gibbs contends trial counsel was ineffective because of a variety of omissions. The trial court's order denying the motion to suppress, based upon the evidence presented at the hearing on the motion, is well reasoned, thorough, and complete. We expressly adopt its conclusions as our own. Its finding was not clearly erroneous, so the denial of Gibbs' motion for a new trial was justified.
2. Gibbs enumerates as error the general grounds. This issue was not raised in his motion for new trial, the trial court's order contains a footnote specifically stating that the order addresses only issues raised in the motion, and, as noted previously, Gibbs referred to only this order in his notice of appeal.
Nevertheless, even if the appeal had been taken from the judgment of conviction as well, we find that at trial Gibbs was identified by both victims as the perpetrator of the crime. He was also connected to the scene by clothing found in his apartment, a pillow case taken from the scene, and blood of his rare type found at the scene. Viewing all the evidence in a light most favorable to the verdict, rational jurors could have found appellant guilty of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
3. Gibbs also enumerates as error the trial court's denial of a continuance when, immediately before trial, he twice...
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...state—he must show a likelihood that such an evaluation would have affected the outcome at trial. [Cit.]"); Gibbs v. State, 213 Ga.App. 117, 119(3), 443 S.E.2d 708 (1994) (denial of motion for continuance proper absent ineffectiveness for inadequate preparation of trial and trial counsel ha......
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...disturb that determination unless it is clearly erroneous. Smith v. State, 256 Ga. 483, 351 S.E.2d 641 (1986); Gibbs v. State, 213 Ga.App. 117, 118(1), 443 S.E.2d 708 (1994). (a) Since Jones was actively involved in the armed robbery, and since there is nothing to suggest that the robbery w......
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...for new trial has expired. See [OCGA §§ 5-5-40; 5-5-41]." (Footnote omitted.) Dick v. State, supra at 898-899(1). See Gibbs v. State, 213 Ga.App. 117, 443 S.E.2d 708 (1994); Hooks v. State, 210 Ga.App. 171, 172, 435 S.E.2d 617 (1993); King v. State, 208 Ga.App. 77, 82, 430 S.E.2d 640 (1993)......
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Willis v. State
...erroneous. Therefore, the denial of the appellant's motion for new trial as to this issue was authorized. See Gibbs v. State, 213 Ga.App. 117, 118(1), 443 S.E.2d 708 (1994). Judgment affirmed in part and reversed in BIRDSONG, P.J., concurs. BLACKBURN, J., concurs in the judgment only. ...