Heard v. State, A93A1952
| Decision Date | 08 November 1993 |
| Docket Number | No. A93A1952,A93A1952 |
| Citation | 210 Ga.App. 805,437 S.E.2d 496 |
| Parties | HEARD v. The STATE. |
| Court | Georgia Court of Appeals |
John V. Lloyd, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., Ann M. Elmore, Asst. Dist. Atty., for appellee.
A jury found Chappell Heard guilty of aggravated assault and criminal attempt to commit armed robbery. He appeals his conviction.
1. The State urges us to dismiss this appeal alleging that Heard's failure to file a timely notice of appeal divests this court of jurisdiction over the case. The court entered its sentence on July 10, 1991. A motion for new trial was filed on July 17, 1991. Prior to a ruling, the motion was withdrawn on October 4, 1991. A notice of appeal was timely filed November 4, 1991. 1 "[T]he withdrawal or dismissal of the motion for new trial ... is considered a disposition of the motion pursuant to OCGA § 5-6-38(a), so as to commence the running of the 30-day period for filing an appeal." Booker v. Amdur, 186 Ga.App. 276, 367 S.E.2d 94 (1988). The running of the 30-day period did not relate back to the date of the entry of the judgment as suggested by the State, but rather runs from the date of the withdrawal of the motion for new trial. The appeal is properly before us and will be considered on its merits.
2. Heard enumerates as error the trial court's refusal to exclude evidence of a pretrial photographic identification procedure which he asserts was impermissibly suggestive. He complains that Heard's picture had booking information visible, that a number on Heard's photograph may have been circled, that the photo had a different colored background and that Heard's face may have been larger than the faces in the other photos. A review of the record reveals, however, that the booking information was blocked out and the circle around the number on Heard's photograph was not present when it was shown to the victim in the case. The six photographs contained in the array, a photocopy of which is part of the record in this case, all show black males of similar complexion, age, and all with short haircuts. "Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Citations and punctuation omitted.) Talley v. State, 209 Ga.App. 79, 80(1), 432...
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Heard v. State
...345(1), 542 S.E.2d 622 (2000), in which the Court of Appeals relied on our decision in Johnson v. State, supra, and Heard v. State, 210 Ga.App. 805(1), 437 S.E.2d 496 (1993).3 However, in light of Johnson and the possibility that appellate counsel may have relied on it to withdraw appellant......
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...motion to suppress the identification evidence was proper. See Cooper, 281 Ga. at 760-761(2), 642 S.E.2d 817; Heard v. State, 210 Ga.App. 805, 806(2), 437 S.E.2d 496 (1993). 5. Lastly, Daniels claims that his counsel provided ineffective assistance. To establish a claim of ineffective assis......
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...J., concur. 1.Wright v. Rhodes, 198 Ga.App. 269, 401 S.E.2d 35 (1990). 2. (Citation and punctuation omitted.) Heard v. State, 210 Ga.App. 805, 805-806(1), 437 S.E.2d 496 (1993). 3. OCGA § 5-6-38(a); see also Booker v. Amdur, 186 Ga.App. 276, 367 S.E.2d 94 (1988). 4. Paul v. State, 231 Ga.Ap......
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