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PEAVY v. THE STATE.

JOHNSON, Judge.

Anthony Peavy did not directly appeal his 1990 burglary conviction, but was granted an out-of-time appeal in a habeas corpus proceeding. After the out-of-time appeal was granted, Peavy did not file a motion for a new trial, but instead filed the instant appeal, in which his sole claim is that his trial counsel was ineffective. "[A] claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]" Ponder v. State, 260 Ga. 840, 841-842 (1) ( 400 S.E.2d 922) (1991); see also Maxwell v. State, 262 Ga. 541, 542-543 (3) ( 422 S.E.2d 543) (1992). Because Peavy's appellate counsel failed to pursue a motion for a new trial after the grant of the out-of-time appeal, the issue of ineffective assistance of trial counsel is waived and cannot be asserted on appeal. Snell v. State, 203 Ga. App. 27, 28 (1) ( 416 S.E.2d 360) (1992); compare King v. State, 208 Ga. App. 77 ( 430 S.E.2d 640) (1993).

Judgment affirmed. Beasley, P. J., and Andrews, J., concur.

DECIDED APRIL 29, 1994.
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PEAVY v. STATE
(Apr 29, 1994)