Dyer v. State

169 Ga. App. 387 (1984)

312 S.E.2d 861

DYER v. THE STATE.

66769.

Court of Appeals of Georgia.

Decided January 3, 1984.

J. Dunham McAllister, for appellant.

William E. Frey, Solicitor, for appellee.

CARLEY, Judge.

On October 8, 1982, appellant entered a plea of guilty to a two-count accusation. As to each count, a twelve-month sentence was imposed, to be suspended upon the payment of a $1,000 fine. On October 19, 1982, appellant filed a motion to withdraw his guilty plea. The record before us contains no ruling by the trial court on this motion. On November 8, 1982, appellant filed his notice of appeal "from the judgment of conviction and sentence entered herein on October 8, 1982."

Appellant's sole enumeration of error is the failure of the trial court to allow appellant to withdraw his guilty plea. Even assuming that a notice of appeal from the original judgment of conviction and sentence is the proper vehicle by which to institute an appeal alleging as error the ruling on a subsequent motion to withdraw a guilty plea, it is clear that we cannot reach that issue in the instant case. Contrary to appellant's assertion in his brief that the trial court denied the motion to withdraw his guilty plea, it appears from the record before us that the trial court has not ruled on that motion. There is, of course, a fundamental difference between an appeal in which a motion has been denied and one in which the motion has been neither granted nor denied. "The burden is on the defendant who asserts error to show it affirmatively by the record, and here there appears to have been no ruling requiring our review. [Cit.]" Hunsucker v. State, *388 160 Ga. App. 846 (1) (287 SE2d 689) (1982). "The record shows that . . . a motion was made but it does not show that any ruling was ever invoked thereon, hence there is nothing for either this court or our Supreme Court to consider. [Cits.]" Sheard v. State, 121 Ga. App. 666 (175 SE2d 148) (1970). "When enumerations of error are unsupported by the record, no question for decision thereon is presented to this court on appeal. [Cits.]" Reddix v. Chatham County Hosp. Auth., 134 Ga. App. 860, 861 (2) (216 SE2d 680) (1975), overruled on other grounds Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981).

Accordingly, the judgment of conviction and sentence entered pursuant to appellant's guilty plea is affirmed. If and when appellant's motion to withdraw his guilty plea is ruled upon, a timely filed notice of appeal from that ruling would cause the issue sought to be raised here to be properly before this court.

Judgment affirmed. Deen, P. J., and Banke, J., concur.