Barnes v. State

Court of Appeals of Georgia

Barnes v. State

319 S.E.2d 548, 171 Ga. App. 397, 1984 Ga. App. LEXIS 2214

CourtCourt of Appeals of Georgia

DecidedJune 28, 1984

Docket68002

StatusPublished

This text of 319 S.E.2d 548 (Barnes 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.

Bluebook

Barnes v. State, 319 S.E.2d 548, 171 Ga. App. 397, 1984 Ga. App. LEXIS 2214 (Ga. Ct. App. 1984).

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Opinion

Carley, Judge.

Appellant was indicted for burglary. Thereafter, appellant pled guilty and received a ten-year sentence. He appeals, enumerating as error the trial court’s refusal to allow the withdrawal of the guilty plea.

1. Appellant’s notice of appeal was filed within thirty days of the date that the judgment of conviction and sentence were entered on the guilty plea. The State urges, however, that appellant’s appeal must be dismissed. “It has been held that a motion for new trial can not be employed as a means of withdrawing a guilty plea; nor can there be an appeal from a judgment entered on a guilty plea.” (Emphasis supplied.) Conlogue v. State, 243 Ga. 141, 144 (253 SE2d 168) (1979).

Holding that it was dicta, our Supreme Court has specifically disapproved the statement (in Conlogue v. State, supra) that “there is [398]*398no appeal from a judgment entered on a guilty plea.” Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). “Where the question on appeal is one which may be resolved by facts appearing in the record, ... a direct appeal will lie.” Smith v. State, supra at 169. Accordingly, the motion to dismiss the instant appeal is denied. See Fuller v. State, 159 Ga. App. 512, 513 (2) (284 SE2d 29) (1981).

Decided June 28, 1984. Lennie W. Jones, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

2. The transcript of the hearing on appellant’s guilty plea demonstrates that it was conducted in compliance with State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). “Here the evidence does not establish that a plea bargain was reached. Nonetheless a recommendation was made by the State. Other than suggesting a [partially probated] sentence the terms of the recommendation are vague. It is abundantly clear from the trial judge’s statements, he did not intend to follow or be bound by the recommendation. [Appellant] expressed full understanding of the court’s decision. Under these circumstances [appellant] had no right to withdraw his plea.” Hamm v. Weldon, 252 Ga. 213, 214-15 (312 SE2d 335) (1984).

The argument that appellant had the right to withdraw his guilty plea before the orally pronounced sentence was written, signed, and filed is without merit. State v. Germany, supra. “This court is, of course, bound by the holding of our Supreme Court in State v. Germany, and must follow it in the instant case. [Cit.]” Hill v. State, 167 Ga. App. 746 (307 SE2d 537) (1983).

Judgment affirmed.

Quillian, P. J., and Birdsong, J., concur.

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Carley, Judge.

Appellant was indicted for burglary. Thereafter, appellant pled guilty and received a ten-year sentence. He appeals, enumerating as error the trial court’s refusal to allow the withdrawal of the guilty plea.

1. Appellant’s notice of appeal was filed within thirty days of the date that the judgment of conviction and sentence were entered on the guilty plea. The State urges, however, that appellant’s appeal must be dismissed. “It has been held that a motion for new trial can not be employed as a means of withdrawing a guilty plea; nor can there be an appeal from a judgment entered on a guilty plea.” (Emphasis supplied.) Conlogue v. State, 243 Ga. 141, 144 (253 SE2d 168) (1979).

Holding that it was dicta, our Supreme Court has specifically disapproved the statement (in Conlogue v. State, supra) that “there is [398]*398no appeal from a judgment entered on a guilty plea.” Smith v. State, 253 Ga. 169 (316 SE2d 757) (1984). “Where the question on appeal is one which may be resolved by facts appearing in the record, ... a direct appeal will lie.” Smith v. State, supra at 169. Accordingly, the motion to dismiss the instant appeal is denied. See Fuller v. State, 159 Ga. App. 512, 513 (2) (284 SE2d 29) (1981).

Decided June 28, 1984. Lennie W. Jones, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

2. The transcript of the hearing on appellant’s guilty plea demonstrates that it was conducted in compliance with State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). “Here the evidence does not establish that a plea bargain was reached. Nonetheless a recommendation was made by the State. Other than suggesting a [partially probated] sentence the terms of the recommendation are vague. It is abundantly clear from the trial judge’s statements, he did not intend to follow or be bound by the recommendation. [Appellant] expressed full understanding of the court’s decision. Under these circumstances [appellant] had no right to withdraw his plea.” Hamm v. Weldon, 252 Ga. 213, 214-15 (312 SE2d 335) (1984).

The argument that appellant had the right to withdraw his guilty plea before the orally pronounced sentence was written, signed, and filed is without merit. State v. Germany, supra. “This court is, of course, bound by the holding of our Supreme Court in State v. Germany, and must follow it in the instant case. [Cit.]” Hill v. State, 167 Ga. App. 746 (307 SE2d 537) (1983).

Judgment affirmed.

Quillian, P. J., and Birdsong, J., concur.

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319 S.E.2d 548, 171 Ga. App. 397, 1984 Ga. App. LEXIS 2214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-gactapp-1984.

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