☢ test - Í

treatment are not subject to direct appeal because they are not rulings on whether the sentence is void. Rather, a petition for writ of habeas corpus is the means for seeking sentence review for such allegations. Jones v. State, 278 Ga. 669, 670- 671 (604 S.E.2d 483) (2004); see also Hughes v. State, 273 Ga.App. 705, 706 (615 S.E.2d 819) (2005) (if sentence falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f)).” Accord, Jones v. State , 303 Ga.App. 319, 693 S.E.2d 499 (January 14, 2010). Distinguished, Wiggins v. State , 288 Ga. 169, 702 S.E.2d 865 (November 8, 2010) (motion to strike sentence based on alleged unconstitutionality of sentencing statute – here, challenging sex offender registration requirement -- properly brought). Manley v. State, 287 Ga.App. 358, 651 S.E.2d 453 (August 10, 2007). Defendant was not entitled to withdraw her guilty plea; plea was entered based on prosecutor’s recommendation, but was not a “negotiated” plea. “There is nothing in the transcript of the plea hearing to indicate that Manley had entered a negotiated plea. Rather, it is abundantly clear from the colloquy among the trial court, the attorneys, and Manley that the plea was open-ended. Before the plea was accepted, the trial court informed Manley that she would be sentenced to 10 years rather than the three recommended by the State. Thus, this is not a case in which the defendant was surprised by an unfavorable sentence after entering a guilty plea. Compare Lawrence v. State, 234 Ga.App. 603, 605(1) (507 S.E.2d 490) (1998); Forrest v. State, 251 Ga.App. 487, 488(2) (554 S.E.2d 735) (2001). Although the State made sentencing recommendations, this fact does not ‘transform a nonnegotiated plea into a negotiated one.’ Rosser v. State, 273 Ga.App. 745, 746 (615 S.E.2d 842) (2005). And, with nonnegotiated pleas, the trial court is not required to comply with Uniform Superior Court Rule 33.10. See id.; Brassfield v. State, 242 Ga.App. 747, 748-749(2) (531 S.E.2d 148) (2000). Under these circumstances, this argument provides no basis for reversal.” Kaiser v. State, 285 Ga.App. 63, 646 S.E.2d 84 (March 28, 2007). Unanimous whole court opinion. After sentence on defendant’s guilty pleas was overturned on appeal and remanded for re-sentencing, defendant moved to withdraw his pleas. Held, trial court erred in denying defendant’s motion to withdraw the guilty pleas after sentence was found to be illegal and void on appeal. Based on Mullins v. State , 134 Ga.App. 243, 214 S.E.2d 1 (1975); overruling a line of contrary cases beginning with Jarrett v. State , 217 Ga.App. 627, 458 S.E.2d 414 (1995), “to the extent that those cases hold, or in reaching their holding adopt the finding, that a trial court may not grant a motion for withdrawal filed outside the term of court in which sentence is imposed, where that sentence is void and the motion was filed prior to re- sentencing.” Court reasons here that the defendant’s time to withdraw the plea “at any time before judgment is pronounced” has never terminated, since a valid sentence has never been entered. “A void sentence is a nullity, and until the defendant is legally sentenced, the time limitation should not begin to run.” Accord, Franks v. State , 323 Ga.App. 813, 748 S.E.2d 291 (September 5, 2013); Royals v. State , 327 Ga.App. 337, 761 S.E.2d 357 (May 21, 2014). Distinguished, Turner (February 21, 2012), above. Carr v. State, 282 Ga.App. 134, 637 S.E.2d 835 (October 30, 2006). Defendant waived right to contend that charges should have merged by agreeing to plead guilty “and specifically agreeing to separate, concurrent sentences for each charge, in exchange for the dismissal of five other charges.” Accord, Turner v. State , 284 Ga. 488, 668 S.E.2d 695 (October 27, 2008) (negotiated plea to four misdemeanor counts of public indecency, which should have merged, to avoid prosecution on a twenty-year felony). This line of cases overruled, Nazario v. State , 293 Ga. 480, 746 S.E.2d 109 (July 11, 2013). Gibson v. State, 281 Ga.App. 607, 636 S.E.2d 767 (September 20, 2006). Trial court improperly injected itself into plea negotiations with this statement to defendant who was wavering about pleading guilty versus going to trial: “ If you are asking me will I give you that same consideration after you have put the state on trial, they have brought in witnesses at their expense, these citizens have listened to evidence over four or five days, will I give you the same consideration versus saving the taxpayers money? No. ” “Comments by the trial judge which reinforce the unmistakable reality that a defendant who rejects a plea offer and instead opts to go to trial will likely face a greater sentence have been held by this Court to unlawfully insert the judge into the plea process. See Skomer v. State, 183 Ga.App. 308, 309 (358 S.E.2d 886) (1987). See also Cherry [ v. State, 240 Ga.App. 41, 43-44(2) (522 S.E.2d 540) (1999)]. Cf. McDaniel [ v. State, 271 Ga. 552, 553(2) (522 S.E.2d 648) (1999)]. This Court has recognized ‘an enormous difference between simply being aware or even being reminded by the state that rejection of a plea proposal may result in a greater punishment and being told by the trial judge that a rejection of a plea proposal will result in greater punishment in the event of a conviction by a jury.’ (Emphasis in original.) Skomer, 183 Ga.App. at 309. The latter results in the judge becoming a participant in the plea bargaining, which in turn ‘brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is a present reminder whether referred to or

Made with FlippingBook Ebook Creator