State v. Patricia Hill

• Court: Court of Appeals of Georgia
• Decided: May 14, 2013
• Docket: A13A0799
• Status: Published

Opinion

THIRD DIVISION ANDREWS, P. J., DILLARD and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 14, 2013

In the Court of Appeals of Georgia A13A0799 THE STATE v. PATRICIA HILL.

MCMILLIAN, Judge.

The State appeals the trial court’s order vacating Patricia Hill’s plea of guilty

to one count of misdemeanor battery and one count of simple battery and entering a

plea of no contest in its stead. Because this is not an order from which the State can

appeal under OCGA § 5-7-1, the appeal is dismissed.

Hill originally pled guilty to these counts on October 18, 2012, as part of a

negotiated plea. In exchange, the State requested, and the trial court entered, an order

to nolle prosequi four additional counts of simple battery and one count of simple

assault against her. The record shows that the State and Hill initially negotiated the

plea to include first offender status with 24 months probation and 48 hours to serve,

among other conditions. But after hearing the factual basis from the State and Hill and holding an unrecorded bench conference with counsel, the trial court sentenced

Hill to serve 13 hours, with credit for time served, and closed the case. The State

raised no objection at that time.

However, approximately one week later, on October 26, 2012, the trial court

held another hearing in which it invited Hill to change her plea from guilty to no

contest. The trial judge, acknowledging that she failed to provide Hill first offender

treatment in the original sentence, said that she regularly allowed defendants in

similar circumstances to enter a no contest plea. The trial judge recognized that Hill

was concerned about her record and stated that a no contest plea did not “look quite

as bad” and could not “be used for certain other purposes.”

The prosecution objected to the trial court’s initiating such a procedure, noting

that the defendant had made no request to withdraw her plea and had been willing to

enter a guilty plea after the trial court rejected the parties’ negotiated plea. The

prosecutor then stated, “If Your Honor is wishing to reopen the case to allow the

entry of a nolo plea, the State would withdraw its motion for a nolle [prosequi] as this

is no longer a negotiated plea on the remaining counts, and would ask that Ms. Hill

have to enter the plea to the entirety of the accusation as a non-negotiated plea.” The

trial judge responded by stating that she was allowing the guilty plea to be vacated

2 and replaced with a no contest plea, noting that she is not bound by the terms of the

parties’ negotiated plea. The trial court, however, did not expressly address the issue

of the State’s nolle prosequi, and the State did not pursue the issue further.

As its sole argument on appeal, the State asserts the trial court erred by

dismissing five counts of Hill’s accusation without legal authority. Although the

State concedes the trial court had the authority to vacate Hill’s guilty plea, it argues

that the trial court could not substitute a no contest plea for Hill without re-opening

her entire case. The State asserts that it withdrew its motion for nolle prosequi when

the trial court changed the plea, and thus, the trial court erred when it did not address

those counts of the accusation.

But the order from which the State appeals does not dismiss any counts of the

accusation. Rather, those counts had already been dismissed pursuant to the State’s

request at the original guilty plea hearing on October 18, 2012. See Buice v. State,

272 Ga. 323, 324 (528 SE2d 788) (2000) (“[n]olle prosequi is the State’s formal

action on its decision not to further prosecute”). When the trial court entered an order

granting the nolle prosequi that day, the prosecution for those counts of the

accusation came to an end. See State v. Davis, 196 Ga. App. 785 (397 SE2d 58)

(1990).

3 The order at issue in this appeal merely vacates Hills’ guilty plea and

substitutes a no contest plea in its place, and the State has no right to appeal from

such an order. “In OCGA § 5-7-1 (a), the General Assembly has set forth only a

limited right of appeal for the State in criminal cases. If the State attempts an appeal

outside the ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction

to entertain it.” (Citations and punctuation omitted.) State v. Outen, 289 Ga. 579, 580

(714 SE2d 581) (2011). Nothing in that statute allows the State to appeal directly

from an order entering, vacating or substituting a plea. Accordingly, we have no

jurisdiction to consider the State’s appeal.

Although the State argues that the trial court’s failure to reinstate the

previously dismissed counts at the time it accepted Hills’ no contest plea somehow

constituted a dismissal of those counts, thus allowing the State to appeal,1 the record

contains nothing for us to review in that regard. The State made only a conditional

motion to withdraw its prior nolle prosequi at the October 26 hearing, stating that it

would withdraw the motion if the trial court re-opened the case. Even if we were to

interpret the prosecutor’s statement as a motion to withdraw, however, the State failed

1 OCGA § 5-7-1 (a) (1) authorizes the State to appeal from an order dismissing an accusation or indictment.

4 to obtain any ruling on such a motion. Thus, pretermitting whether an order denying

a motion to withdraw a nolle prosequi could ever constitute an order appealable by

the State, the State’s failure to obtain a ruling on its motion leaves nothing for this

Court to review. See Glover v. State, 291 Ga. 152, 153 (2) (728 SE2d 221) (2012) (in

Georgia, “counsel must obtain rulings on his motions or objections, and the failure

to do so ordinarily results in a waiver”) (citations and punctuation omitted).

Appeal dismissed. Andrews, P. J., and Dillard, J., concur.