Cabell v. State

471 S.E.2d 222 (1996)

221 Ga. App. 192

CABELL v. The STATE.

No. A96A0710.

Court of Appeals of Georgia.

March 25, 1996.

Reconsideration Denied April 29, 1996.

*223 Shandor S. Badaruddin, James H. Potts II, Atlanta, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, Lawrenceville, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Stephen Douglas Cabell pleaded guilty to possession of cocaine with intent to distribute and the court pronounced judgment and imposed sentence. In June 1995, four terms later, Cabell moved to withdraw his plea. The superior court denied the motion, and this appeal ensued. Held:

A superior court's jurisdiction to consider a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction is rendered. Stuckey v. State, 204 Ga.App. 793, 794(1), 420 S.E.2d 655 (1992). The judgment in the instant case was pronounced during the September 1994 term of court and the motion to withdraw was filed during the May 1995 term. OCGA § 15-6-3(20). Because the court lacked jurisdiction to consider the substantive issues Cabell raised in his motion, the order appealed from is a nullity. OCGA § 17-9-4; see State v. Mohamed, 203 Ga.App. 21(2), 416 S.E.2d 358 (1992); compare Stargell v. State, 204 Ga.App. 45, 418 S.E.2d 372 (1992) (affirming denial of motion to withdraw guilty plea for lack of jurisdiction). The motion cannot be construed as a motion in arrest of judgment because it was not filed during the term the judgment was obtained. OCGA § 17-9-61(b). Nor can it be considered a habeas petition because Cabell filed it in the county of his conviction rather than against his warden in the county where he is incarcerated. Stargell, 204 Ga.App. at 45, 418 S.E.2d 372; see Jarrett v. State, 217 Ga.App. 627, 628(1), 458 S.E.2d 414 (1995). Because the order denying Cabell's motion is void, the trial court is directed to strike it from the record and dismiss this action for lack of jurisdiction. See State v. James, 211 Ga. App. 149, 150, 438 S.E.2d 399 (1993).

Judgment vacated and case remanded with direction.

BEASLEY, C.J., and BIRDSONG, P.J., concur.