Richardson v. State

701 S.E.2d 908 (2010)

RICHARDSON v. The STATE.

No. A10A0919.

Court of Appeals of Georgia.

September 30, 2010.

Carlos Richardson, pro se.

John V. Lloyd, for appellant.

Larry Chisolm, District Attorney, Kimberly Rowden, Jeffrey S. Hendrix, Assistant District Attorneys, for appellee.

PHIPPS, Presiding Judge.

Carlos Richardson appeals pro se from an order of the Superior Court of Chatham County dismissing as untimely his motion to withdraw his guilty plea. Finding no error, we affirm.

While represented by counsel, Richardson entered a negotiated guilty plea to trafficking in cocaine and possession of tools for the commission of a crime. In February 2006, the trial court entered a judgment of conviction and sentence on the plea. That same month, Richardson filed a motion to withdraw the plea as not knowingly, voluntarily or intelligently made. The trial court denied the motion in June 2006. In January 2007, while represented by counsel, Richardson filed a notice of appeal from the judgment of conviction and sentence and the order denying his motion to withdraw the guilty plea. We dismissed that appeal as untimely.

In August 2009, Richardson filed a pro se motion to withdraw the same guilty plea, alleging that it was not voluntarily and intelligently entered, as he had received ineffective assistance of trial and appellate counsel, and the trial court had improperly participated in the plea negotiations. The trial court denied Richardson's motion as untimely, and Richardson now appeals that judgment.

1. The trial court correctly denied Richardson's motion as untimely. A trial court lacks jurisdiction to allow a defendant to withdraw a guilty plea when the term of court in which the defendant was sentenced has expired.[1] Richardson filed the subject motion to withdraw his guilty plea in 2009, well beyond the expiration of the December 2005 term in which he was sentenced.[2] Thus, the trial court lacked jurisdiction over the motion.[3] The only available means for Richardson to withdraw his plea is through habeas corpus proceedings.[4]

2. In light of our holding in Division 1, we need not consider Richardson's remaining claims of error.

Judgment affirmed.

MILLER, C.J., and JOHNSON, J., concur.

[1] Davis v. State, 274 Ga. 865, 561 S.E.2d 119 (2002); Thompson v. State, 279 Ga.App. 375, 376(1), 631 S.E.2d 422 (2006).

[2] The terms of court for Chatham County commence on the first Monday in March, June, September and December. OCGA § 15-6-3(17).

[3] See McKiernan v. State, 286 Ga. 756, 757, 692 S.E.2d 340 (2010).

[4] See Dupree v. State, 279 Ga. 613, 614, 619 S.E.2d 608 (2005).