Smith v. State

I write this dissenting opinion in order to explain two points in *482which I disagree with the opinion of this Court.

1. After appellant’s motion for new trial was denied, appellant’s appellate counsel moved for reconsideration of the motion, contending for the first time that trial counsel had been ineffective, but appellant’s counsel did not request an evidentiary hearing on that issue. The opinion of this Court holds that the failure to request an evidentiary hearing did not operate as a waiver, because “[ujpon further review of the record during appellant’s second appeal, we believe the…