Atkinson v. State

Court of Appeals of Georgia

Atkinson v. State

466 S.E.2d 32, 219 Ga. App. 366, 95 Fulton County D. Rep. 3919, 1995 Ga. App. LEXIS 1042

CourtCourt of Appeals of Georgia

DecidedDecember 4, 1995

DocketA95A1387

StatusPublished

Cited by1 cases

This text of 466 S.E.2d 32 (Atkinson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Atkinson v. State, 466 S.E.2d 32, 219 Ga. App. 366, 95 Fulton County D. Rep. 3919, 1995 Ga. App. LEXIS 1042 (Ga. Ct. App. 1995).

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Opinion

Pope, Presiding Judge.

On December 20, 1993, defendant Thomas Atkinson pled guilty to robbery by sudden snatching, theft by taking a motor vehicle, driving without a license and obstruction. On December 28, 1994, defendant moved to withdraw his guilty plea, contending that his trial counsel was ineffective in failing to inform defendant that he had a right to appeal. Defendant filed the present appeal following the trial court’s denial of his motion to withdraw his plea. Concluding that the trial court did not err, we affirm.

Although defendant’s motion was styled as a motion to withdraw a guilty plea, in essence, the motion amounts to a request for an out-of-time appeal. “An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken. Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991); Henderson v. State, 265 Ga. 317 (2) (454 SE2d 458) (1995). However, an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984).” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995).

In this case, defendant contends that his guilty plea was not voluntary because his trial counsel defrauded him and coerced him into entering the plea. Such allegations cannot be verified or disproved by the facts appearing in the record. Consequently, defendant “had no right to file even a timely notice of appeal from the judgment of conviction entered on [his] guilty plea, [and therefore] he was not entitled to be informed of a non-existent ‘right’ to appeal.” Morrow, supra at 4. Defendant’s only available remedy in this case is through a habeas corpus proceeding. Id. This is true even if we did not treat defendant’s motion to withdraw his guilty plea as a motion for an out-of-time appeal. See Vaughn v. State, 248 Ga. 325 (283 SE2d 263) (1981); Jarrett v. State, 217 Ga. App. 627, 628-629 (1) (458 SE2d 414) (1995).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

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Pope, Presiding Judge.

On December 20, 1993, defendant Thomas Atkinson pled guilty to robbery by sudden snatching, theft by taking a motor vehicle, driving without a license and obstruction. On December 28, 1994, defendant moved to withdraw his guilty plea, contending that his trial counsel was ineffective in failing to inform defendant that he had a right to appeal. Defendant filed the present appeal following the trial court’s denial of his motion to withdraw his plea. Concluding that the trial court did not err, we affirm.

Although defendant’s motion was styled as a motion to withdraw a guilty plea, in essence, the motion amounts to a request for an out-of-time appeal. “An out-of-time appeal is occasionally appropriate where, due to ineffective assistance of counsel, no appeal has been taken. Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991); Henderson v. State, 265 Ga. 317 (2) (454 SE2d 458) (1995). However, an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984).” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995).

In this case, defendant contends that his guilty plea was not voluntary because his trial counsel defrauded him and coerced him into entering the plea. Such allegations cannot be verified or disproved by the facts appearing in the record. Consequently, defendant “had no right to file even a timely notice of appeal from the judgment of conviction entered on [his] guilty plea, [and therefore] he was not entitled to be informed of a non-existent ‘right’ to appeal.” Morrow, supra at 4. Defendant’s only available remedy in this case is through a habeas corpus proceeding. Id. This is true even if we did not treat defendant’s motion to withdraw his guilty plea as a motion for an out-of-time appeal. See Vaughn v. State, 248 Ga. 325 (283 SE2d 263) (1981); Jarrett v. State, 217 Ga. App. 627, 628-629 (1) (458 SE2d 414) (1995).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

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466 S.E.2d 32, 219 Ga. App. 366, 95 Fulton County D. Rep. 3919, 1995 Ga. App. LEXIS 1042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-state-gactapp-1995.

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