Ricks v. State

670 S.E.2d 164 (2008)

RICKS v. The STATE.

No. A08A1320.

Court of Appeals of Georgia.

November 5, 2008.

Akil K. Secret, Atlanta, for appellant.

Richard G. Milam, District Attorney, James L. Moss, Jr., Rita B. Lewis, Assistant District Attorneys, for appellee.

RUFFIN, Presiding Judge.

On February 26, 2004, Morris Ricks was convicted of trafficking in cocaine. He filed a motion for new trial, but for various reasons no hearing on the merits was ever conducted. At a hearing on August 29, 2005, Ricks dismissed his counsel, and the hearing was therefore continued until October 27, 2005. We find no evidence in the record, however, that a hearing took place on that date. On August 21, 2006, the trial court denied Ricks's motion for new trial.[1] Ricks retained new counsel, who filed a motion for a hearing on the motion for new trial or, alternatively, for an out-of-time appeal. The trial court treated it as a motion for new trial, which it denied, but granted the motion for an out-of-time appeal in a separate order. Ricks now appeals the denial of his motion for new trial.

*165 Because Ricks was denied his right to a hearing on his motion for new trial, we vacate the judgment below and remand for further proceedings.[2]

[A]bsent a waiver, a movant for new trial is entitled to a hearing on the motion in the trial court before a ruling is made thereon; and ... if the movant's right to such a hearing has been denied, we must return the case to the trial court for a hearing and disposition of the motion before the merits of the remaining claims of error are addressed.[3]

The State argues that Ricks waived his right to a hearing by terminating his counsel at the time of the hearing. But we cannot find on the limited record before us that Ricks's actions merit a finding of waiver. Especially in light of the fact that Ricks asserts ineffective assistance of counsel as one of the bases upon which he seeks a new trial, and because ineffective assistance must be determined through an evidentiary hearing, the appropriate procedure now that an out-of-time appeal has been granted is for the trial court to hold an evidentiary hearing on Ricks's motion for new trial.[4] Accordingly, we vacate the order denying Ricks's motion for a new trial and remand the case for a hearing on the same.[5]

Judgment vacated and case remanded.

ANDREWS and BERNES, JJ., concur.

NOTES

[1] On May 31, 2007, Ricks filed a pro se motion for out-of-time appeal, which was denied. Ricks then sought to appeal the August 21, 2006 denial of his motion for new trial, but that appeal was dismissed as untimely.

[2] See Sidhu v. Ga. Macon Contractors & Equip., 263 Ga.App. 100, 587 S.E.2d 252 (2003); Wright v. Barnes, 240 Ga.App. 684, 685, 524 S.E.2d 758 (1999).

[3] (Footnote omitted.) Sidhu, supra at 101, 587 S.E.2d 252.

[4] See Holt v. State, 205 Ga.App. 40, 41-44(3), 421 S.E.2d 131 (1992); compare Jones v. State, 280 Ga.App. 287, 296(5), 633 S.E.2d 806 (2006).

[5] See Sidhu, supra; Wright, supra.