315 Ga. 395 FINAL COPY
S22A1083. HARVEY v. THE STATE.
ELLINGTON, Justice.
Holly Harvey appeals from an order of the trial court denying
her motion for an out-of-time appeal, denying her motion to modify
her sentences, and dismissing her motion to withdraw her guilty
pleas. After reviewing the record, we conclude that the trial court
properly dismissed her motion to withdraw her guilty pleas because
it was untimely filed. Because her motion for an out-of-time appeal
and motion to modify her sentences also should have been
dismissed, we vacate that part of the trial court’s order denying
these motions and remand to the trial court with direction.
This is the second time this case has been before this Court.
See Harvey v. State, 312 Ga. 263 (862 SE2d 120) (2021) (“Harvey I”).
Pertinent to this appeal, the record shows that Harvey was indicted
by a Fayette County grand jury in September 2004 for two counts of malice murder, two counts of felony murder, and one count of armed
robbery in connection with the August 2, 2004 stabbing deaths of
her grandparents. She entered negotiated guilty pleas to two counts
of malice murder on April 14, 2005, and was sentenced the same day
to two consecutive life sentences. Seven years later, Harvey filed a
pro se motion for an out-of-time appeal in which she argued that her
plea counsel provided constitutionally ineffective assistance of
counsel and that she was entitled to withdraw her guilty pleas
because counsel’s ineffectiveness frustrated her ability to seek
review of her pleas. After she amended her motion for an out-of-time
appeal multiple times, the trial court denied the motion on February
19, 2021, a decision we affirmed in Harvey I.
In January 2022, Harvey returned to the trial court, where she
filed the motions at issue in this appeal: for an out-of-time appeal,
to withdraw her April 2005 guilty pleas, and to modify her
sentences. She amended the motion to modify her sentence and
motion to withdraw her guilty pleas on February 10, 2022, and on
February 14 and 15, 2022, the trial court entered orders in which it
2 denied both the motion for an out-of-time appeal and motion to
modify her sentences and dismissed as untimely under OCGA § 17-
10-1 (f) the motion to withdraw her guilty pleas. Harvey challenges
the trial court’s decision as to each of these motions in this appeal.1
1. Harvey contends the trial court erred by denying her motion
for an out-of-time appeal. We agree, because the trial court should
have dismissed the motion rather than consider its merits.
In Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), this Court
eliminated the judicially created out-of-time-appeal procedure,
holding that a trial court is “without jurisdiction to decide [a] motion
for out-of-time appeal” on the merits because there “is no legal
authority for motions for out-of-time appeal in trial courts.” Id. at
506 (5). We also directed in Cook that “pending and future motions
for out-of-time appeals in trial courts should be dismissed, and trial
court orders that have decided such motions on the merits . . . should
be vacated if direct review of the case remains pending or if the case
1 Harvey filed a timely notice of appeal from the trial court’s order. The
appeal was docketed to the August 2022 term of this Court and submitted for a decision on the briefs. 3 is otherwise not final.” Id. at 505 (4). Accordingly, that part of the
trial court’s order denying Harvey’s motion for an out-of-time appeal
is vacated and remanded to the trial court for the entry of an order
dismissing the motion.2
Citing our decision in Cook, Harvey also argues that this Court
should recall the remittitur in Harvey I and remand that case to the
trial court with direction that the motion be dismissed because the
trial court lacked jurisdiction to consider her first motion for an out-
of-time appeal on its merits. As previously stated, however, our
holding in Cook applies only to cases that were on “direct review or
2 Even if Harvey’s motion for an out-of-time appeal was not subject to
dismissal under Cook, the claims she raises in the motion would be barred by the doctrine of res judicata. “Res judicata precludes re-litigation of claims where the cause of action and the parties or their privies are identical and the claim was previously adjudicated on the merits by a court of competent jurisdiction.” (Citation and punctuation omitted.) Cooper v. State, 306 Ga. 164, 165 (829 SE2d 365) (2019). The record in this case demonstrates that each of the grounds on which Harvey bases her claims for a second out-of-time appeal was either raised or could have been raised in her first motion for an out-of- time appeal, and the denial of those claims became final when affirmed in Harvey I. See, e.g., Cooper, 306 Ga. at 165 (holding that under the doctrine of res judicata, the previous denial of a motion for an out-of-time appeal bars a new motion for an out-of-time appeal); Beasley v. State, 298 Ga. 49, 50 (779 SE2d 301) (2015) (“[T]he doctrine of res judicata precludes not only re-litigation of claims that were actually adjudicated in the prior cause of action, but those which could have been adjudicated therein.”). Any attempted re-litigation of these claims would, therefore, be barred. 4 otherwise not yet final” when the opinion issued. 313 Ga. at 506 (5).
Harvey’s first motion for an out-of-time appeal was denied by the
trial court in February 2021, and that denial was affirmed by this
Court on August 10, 2021, before Cook was decided. The denial of
Harvey’s initial motion for an out-of-time appeal became final before
Cook was issued and was unaffected by that decision. Accordingly,
there is no basis for this Court to recall the remittitur in Harvey I.
2. Harvey asserts that the trial court erred by dismissing the
motion to withdraw her guilty pleas. Because the motion was
untimely filed, the trial court properly dismissed this motion.
Under Georgia law, a motion to withdraw a guilty plea must be
filed within the same term of court as the sentence entered on the
guilty plea. See Schoicket v. State, 312 Ga. 825, 827 (1) (865 SE2d
170) (2021); Brooks v. State, 301 Ga. 748, 751 (2) (804 SE2d 1) (2017).
As we recognized in Schoicket, “[t]his well-established rule is merely
the application of a bedrock common-law principle that applies
equally to other criminal motions and in civil cases.” 312 Ga. at 827
(1). And, if a defendant seeks to withdraw a guilty plea after
5 expiration of the term of court in which the sentence was imposed,
the defendant “must pursue such relief through habeas corpus
proceedings.” Id. Harvey’s motion to withdraw her guilty pleas was
filed in the Fayette County Superior Court more than 16 years after
her 2005 sentencing by that court. It was, therefore, untimely, and
the trial court lacked jurisdiction to consider the motion on its
merits. Accordingly, it was properly dismissed.
We reject Harvey’s suggestion that we should recognize a
defendant’s right to file an otherwise untimely motion to withdraw
a guilty plea because, she asserts, habeas corpus is a constitutionally
inadequate remedy. As we did in Schoicket, we decline the invitation
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315 Ga. 395 FINAL COPY
S22A1083. HARVEY v. THE STATE.
ELLINGTON, Justice.
Holly Harvey appeals from an order of the trial court denying
her motion for an out-of-time appeal, denying her motion to modify
her sentences, and dismissing her motion to withdraw her guilty
pleas. After reviewing the record, we conclude that the trial court
properly dismissed her motion to withdraw her guilty pleas because
it was untimely filed. Because her motion for an out-of-time appeal
and motion to modify her sentences also should have been
dismissed, we vacate that part of the trial court’s order denying
these motions and remand to the trial court with direction.
This is the second time this case has been before this Court.
See Harvey v. State, 312 Ga. 263 (862 SE2d 120) (2021) (“Harvey I”).
Pertinent to this appeal, the record shows that Harvey was indicted
by a Fayette County grand jury in September 2004 for two counts of malice murder, two counts of felony murder, and one count of armed
robbery in connection with the August 2, 2004 stabbing deaths of
her grandparents. She entered negotiated guilty pleas to two counts
of malice murder on April 14, 2005, and was sentenced the same day
to two consecutive life sentences. Seven years later, Harvey filed a
pro se motion for an out-of-time appeal in which she argued that her
plea counsel provided constitutionally ineffective assistance of
counsel and that she was entitled to withdraw her guilty pleas
because counsel’s ineffectiveness frustrated her ability to seek
review of her pleas. After she amended her motion for an out-of-time
appeal multiple times, the trial court denied the motion on February
19, 2021, a decision we affirmed in Harvey I.
In January 2022, Harvey returned to the trial court, where she
filed the motions at issue in this appeal: for an out-of-time appeal,
to withdraw her April 2005 guilty pleas, and to modify her
sentences. She amended the motion to modify her sentence and
motion to withdraw her guilty pleas on February 10, 2022, and on
February 14 and 15, 2022, the trial court entered orders in which it
2 denied both the motion for an out-of-time appeal and motion to
modify her sentences and dismissed as untimely under OCGA § 17-
10-1 (f) the motion to withdraw her guilty pleas. Harvey challenges
the trial court’s decision as to each of these motions in this appeal.1
1. Harvey contends the trial court erred by denying her motion
for an out-of-time appeal. We agree, because the trial court should
have dismissed the motion rather than consider its merits.
In Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022), this Court
eliminated the judicially created out-of-time-appeal procedure,
holding that a trial court is “without jurisdiction to decide [a] motion
for out-of-time appeal” on the merits because there “is no legal
authority for motions for out-of-time appeal in trial courts.” Id. at
506 (5). We also directed in Cook that “pending and future motions
for out-of-time appeals in trial courts should be dismissed, and trial
court orders that have decided such motions on the merits . . . should
be vacated if direct review of the case remains pending or if the case
1 Harvey filed a timely notice of appeal from the trial court’s order. The
appeal was docketed to the August 2022 term of this Court and submitted for a decision on the briefs. 3 is otherwise not final.” Id. at 505 (4). Accordingly, that part of the
trial court’s order denying Harvey’s motion for an out-of-time appeal
is vacated and remanded to the trial court for the entry of an order
dismissing the motion.2
Citing our decision in Cook, Harvey also argues that this Court
should recall the remittitur in Harvey I and remand that case to the
trial court with direction that the motion be dismissed because the
trial court lacked jurisdiction to consider her first motion for an out-
of-time appeal on its merits. As previously stated, however, our
holding in Cook applies only to cases that were on “direct review or
2 Even if Harvey’s motion for an out-of-time appeal was not subject to
dismissal under Cook, the claims she raises in the motion would be barred by the doctrine of res judicata. “Res judicata precludes re-litigation of claims where the cause of action and the parties or their privies are identical and the claim was previously adjudicated on the merits by a court of competent jurisdiction.” (Citation and punctuation omitted.) Cooper v. State, 306 Ga. 164, 165 (829 SE2d 365) (2019). The record in this case demonstrates that each of the grounds on which Harvey bases her claims for a second out-of-time appeal was either raised or could have been raised in her first motion for an out-of- time appeal, and the denial of those claims became final when affirmed in Harvey I. See, e.g., Cooper, 306 Ga. at 165 (holding that under the doctrine of res judicata, the previous denial of a motion for an out-of-time appeal bars a new motion for an out-of-time appeal); Beasley v. State, 298 Ga. 49, 50 (779 SE2d 301) (2015) (“[T]he doctrine of res judicata precludes not only re-litigation of claims that were actually adjudicated in the prior cause of action, but those which could have been adjudicated therein.”). Any attempted re-litigation of these claims would, therefore, be barred. 4 otherwise not yet final” when the opinion issued. 313 Ga. at 506 (5).
Harvey’s first motion for an out-of-time appeal was denied by the
trial court in February 2021, and that denial was affirmed by this
Court on August 10, 2021, before Cook was decided. The denial of
Harvey’s initial motion for an out-of-time appeal became final before
Cook was issued and was unaffected by that decision. Accordingly,
there is no basis for this Court to recall the remittitur in Harvey I.
2. Harvey asserts that the trial court erred by dismissing the
motion to withdraw her guilty pleas. Because the motion was
untimely filed, the trial court properly dismissed this motion.
Under Georgia law, a motion to withdraw a guilty plea must be
filed within the same term of court as the sentence entered on the
guilty plea. See Schoicket v. State, 312 Ga. 825, 827 (1) (865 SE2d
170) (2021); Brooks v. State, 301 Ga. 748, 751 (2) (804 SE2d 1) (2017).
As we recognized in Schoicket, “[t]his well-established rule is merely
the application of a bedrock common-law principle that applies
equally to other criminal motions and in civil cases.” 312 Ga. at 827
(1). And, if a defendant seeks to withdraw a guilty plea after
5 expiration of the term of court in which the sentence was imposed,
the defendant “must pursue such relief through habeas corpus
proceedings.” Id. Harvey’s motion to withdraw her guilty pleas was
filed in the Fayette County Superior Court more than 16 years after
her 2005 sentencing by that court. It was, therefore, untimely, and
the trial court lacked jurisdiction to consider the motion on its
merits. Accordingly, it was properly dismissed.
We reject Harvey’s suggestion that we should recognize a
defendant’s right to file an otherwise untimely motion to withdraw
a guilty plea because, she asserts, habeas corpus is a constitutionally
inadequate remedy. As we did in Schoicket, we decline the invitation
to “invent additional remedies that might further complicate our
post-conviction jurisprudence.” 312 Ga. at 826 (1). The General
Assembly has enacted habeas statutes balancing the competing
interests of a defendant’s constitutional rights and ensuring finality
of judgments, and this Court “lack[s] the authority to substitute our
policy preferences for those of the General Assembly and thereby
allow a defendant to skirt the legislatively established process.” See
6 id. at 827-831 (1).
3. Finally, Harvey asserts the trial court abused its discretion
by denying her motion to modify her sentences under OCGA § 17-
10-1 (f). But the trial court lacked jurisdiction to consider the motion
on its merits, and the motion should have been dismissed.
OCGA § 17-10-1 (f) grants a sentencing court “the jurisdiction,
power, and authority” to modify or vacate a sentence it previously
entered, but this authority is limited. “The sentencing court
generally has jurisdiction to modify or vacate such a sentence only
for one year following the imposition of the sentence[,]” von Thomas
v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013), or “within 120
days after receipt by the sentencing court of the remittitur upon
affirmance of the judgment after direct appeal, whichever is later.”
OCGA § 17-10-1 (f). Here, because Harvey did not appeal from her
guilty pleas and sentences and filed her motion to modify her
sentences more than a year after the sentences were imposed, the
7 trial court lacked jurisdiction to consider the motion on its merits. 3
Accordingly, we vacate that part of the trial court’s order denying
Harvey’s motion to modify her sentences, and we remand the case
to the trial court with direction that the motion be dismissed.
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
3 Although a sentencing court has jurisdiction to vacate a void sentence
at any time, see von Thomas, 293 Ga. at 571 (2), Harvey does not claim that her two life sentences for the malice murders of her grandparents were not authorized. See OCGA § 16-5-1 (e) (1) (authorizing sentences of death, life imprisonment without parole, or imprisonment for life for any person convicted of the offense of murder). 8 Decided December 20, 2022 — Reconsideration denied January 10,
2023.
Murder. Fayette Superior Court. Before Judge Sams.
Holly Harvey, pro se.
Marie G. Broder, District Attorney, Elizabeth A. Baker, Daniel
A. Hiatt, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Emily R. Polk,
Assistant Attorney General, for appellee.