Court of Appeals hereby passes the following order:
Dale Bryant filed a motion to remand this appeal for a
hearing on his ineffectiveness of trial counsel claims.
trial court entered Bryant's judgment of conviction on
August 25, 2015. On September 11, 2015, trial counsel filed a
motion for a new trial, alleging the general grounds.
Thereafter, Bryant filed a number of pro se motions, which
the trial court denied because Bryant was, at that time,
"represented by an attorney." On February 8, 2016,
the trial court sent a letter to Bryant's trial counsel
requesting that he confirm whether or not he was representing
Bryant. The record does not include a response from trial
counsel, but on February 23, 2016, the trial court sent a
letter to the Georgia Public Defender Council
("GPDC") inquiring about who would represent Bryant
on appeal because Bryant's trial counsel had
continued to send pro se motions, including on February 29,
2016, a "motion to dismiss counsel and appoint new
appointment of counsel, " in which he alleged that his
trial counsel was ineffective. Subsequently, on March 7,
2016, Bryant filed a motion in which he indicated that he
wanted to keep his trial counsel and proceed with a hearing
on the motion for new trial. His trial counsel filed an
amended motion for new trial on April 25, 2016, which,
following a hearing, the trial court denied in an order
entered on May 2, 2016.
counsel filed a timely notice of appeal from that order, and
on July 8, 2016, a motion for an extension of time to file
brief. After the extension of time was granted, trial counsel
filed a motion to remand in this Court in which he maintained
that on July 12, 2016, Bryant had filed a pro se motion
alleging ineffective assistance of counsel, and that the case
should be remanded for a hearing on the motion. In a second
motion for an extension of time to file brief filed on August
17, 2016, trial counsel indicated that he had been released
from Bryant's case by order of the trial court dated July
20, 2016. On August 29, 2016, trial counsel filed
Bryant's appellant's brief.
Under well established Georgia law, appellant was required to
raise any issue of ineffective assistance of trial counsel at
the earliest practicable moment to avoid it being deemed
waived. This requirement that an ineffectiveness claim be
made at the earliest practicable moment is a requisite of a
sound system of criminal justice, serving alike the proper
ends of defendants and the public. By "earliest
practicable moment, " we mean that the ineffectiveness
claim must be raised before appeal if the opportunity to do
so is available.
(Citations and punctuation omitted.) Garland v.
State, 283 Ga. 201, 202 (657 S.E.2d 842) (2008).
case, it is difficult, if not impossible, for this Court to
ascertain whether Bryant has made an ineffectiveness claim,
much less whether it was made at the earliest practicable
moment. The record demonstrates that in February of 2016,
trial counsel notified the trial court that he was conflicted
out of Bryant's case because of ineffectiveness claims.
The trial court then sent a letter of inquiry to the GPDC
about new appellate counsel, but it does not appear that new
counsel was appointed, and the hearing on the motion for new
trial proceeded with the original trial counsel. Bryant then
filed several pro se motions, and in at least one of them
alleged ineffectiveness claims aganist his attorney. In the
amended motion for new trial that was filed by trial counsel,
and at the subsequent hearing on the motion for new trial,
there were no allegations of ineffectiveness. It further
appears that trial counsel was subsequently removed from
Bryant's case after the notice of appeal was filed, but
then filed the appellant's brief, in which no allegations
of ineffective assistance were made.
a post-conviction situation . . . the legitimacy of a request
for appointment of new counsel is per se established, in that
trial counsel cannot reasonably or ethically be expected to
assert or argue his or her own ineffectiveness."
Garland v. State, 283 Ga. at 205 ("Appellant
was constitutionally entitled to the appointment of
conflict-free counsel to represent him on appeal.")
the record is unclear as to whether Bryant was afforded the
opportunity to raise an ineffectiveness claim at the earliest
practicable moment with the benefit of non-conflicted
appellate counsel, Bryant's motion is GRANTED, and we
remand the case to the trial court for appropriate
proceedings concerning the issue of ineffective assistance,
including the appointment of appellate counsel. Peterson
v. State, 274 Ga. 165, 171-172 (549 S.E.2d 387) (2001).
The case may then be transmitted to and re-docketed with the
Court of Appeals. Upon re-docketing, briefing by the parties
should proceed in accordance with Court of Appeals Rule 23.
 Bryant's motion is not included
with the record on appeal.
 The order dismissing trial counsel was
not included with the record on appeal, nor has the record
been supplemented with the order. We also note that trial
counsel did not file a notice of withdrawal of counsel of
record in this ...