Fredy Lopez v. State

• Court: Court of Appeals of Georgia
• Decided: May 31, 2023
• Docket: A23D0321
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 31, 2023

The Court of Appeals hereby passes the following order:

A23D0321. FREDY LOPEZ v. THE STATE.

After entering a guilty plea in 2017 to a charge of aggravated sodomy, Fredy Lopez filed an untimely motion to withdraw his guilty plea. The trial court dismissed the motion, and Lopez timely filed both this application for discretionary appeal and a direct appeal from that ruling.1 The direct appeal has been docketed as Case No. A23A1487. Lopez was not required to file a discretionary application in order to challenge the trial court’s dismissal of his motion to withdraw the guilty plea. Ordinarily, we will grant a timely discretionary application if the lower court’s ruling is subject to direct appeal. See OCGA § 5-6-35 (j). However, in light of Lopez’s direct appeal of the trial court’s order, this application is superfluous. Accordingly, this application is hereby DISMISSED. The State’s motion to dismiss this application on other grounds is hereby DENIED as moot.

1 Lopez filed a prior appeal from the trial court’s order dismissing his motion for out-of-time appeal. That appeal was dismissed. Case No. A22A1530 (Dec. 7, 2022). Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/31/2023 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.