Stockton v. State

Court of Appeals of Georgia

Stockton v. State

690 S.E.2d 623, 302 Ga. App. 42, 2010 Fulton County D. Rep. 140, 2010 Ga. App. LEXIS 26

CourtCourt of Appeals of Georgia

DecidedJanuary 13, 2010

DocketA09A2326

StatusPublished

This text of 690 S.E.2d 623 (Stockton 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

Stockton v. State, 690 S.E.2d 623, 302 Ga. App. 42, 2010 Fulton County D. Rep. 140, 2010 Ga. App. LEXIS 26 (Ga. Ct. App. 2010).

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Opinion

SMITH, Presiding Judge.

In this out-of-time appeal, Antonio Stockton appeals from the trial court’s order denying his motion to withdraw his plea of guilty to armed robbery and theft by taking. 1 He contends that he received ineffective assistance of counsel because his lawyer failed to investi *43 gate his mental competence before he pled guilty. Before denying his motion, the trial court did not conduct an evidentiary hearing to determine whether Stockton’s plea was rendered involuntary because of ineffective assistance of counsel. We therefore vacate the trial court’s order denying the motion to withdraw and remand this case to the trial court to hold an evidentiary hearing on Stockton’s motion to withdraw his guilty plea. Johnson v. State, 273 Ga. App. 11 (614 SE2d 477) (2005).

Decided January 13, 2010. M. V. Booker, for appellant. Samuel H. Altman, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

The State’s contention that Stockton’s only remedy is to pursue a habeas corpus petition is without merit. The State relies upon cases in which the defendant seeks to appeal from a guilty plea, not an order denying a motion to withdraw a guilty plea. See, e.g., Manion v. State, 228 Ga. App. 270-271 (491 SE2d 506) (1997); compare Caine v. State, 266 Ga. 421-422 (467 SE2d 570) (1996) (comparing a direct appeal from a guilty plea with a direct appeal from a motion to withdraw a guilty plea); Frost v. State, 286 Ga. App. 694 (649 SE2d 878) (2007) (direct appeal after hearing held on motion to withdraw guilty plea).

Judgment vacated and case remanded with direction.

Phipps and Bernes, JJ., concur.

1

In Stockton v. State, 298 Ga. App. 84, 86 (679 SE2d 109) (2009), this court concluded that Stockton was entitled to an out-of-time appeal from the trial court’s order denying his motion to withdraw his guilty plea.

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SMITH, Presiding Judge.

In this out-of-time appeal, Antonio Stockton appeals from the trial court’s order denying his motion to withdraw his plea of guilty to armed robbery and theft by taking. 1 He contends that he received ineffective assistance of counsel because his lawyer failed to investi *43 gate his mental competence before he pled guilty. Before denying his motion, the trial court did not conduct an evidentiary hearing to determine whether Stockton’s plea was rendered involuntary because of ineffective assistance of counsel. We therefore vacate the trial court’s order denying the motion to withdraw and remand this case to the trial court to hold an evidentiary hearing on Stockton’s motion to withdraw his guilty plea. Johnson v. State, 273 Ga. App. 11 (614 SE2d 477) (2005).

Decided January 13, 2010. M. V. Booker, for appellant. Samuel H. Altman, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

The State’s contention that Stockton’s only remedy is to pursue a habeas corpus petition is without merit. The State relies upon cases in which the defendant seeks to appeal from a guilty plea, not an order denying a motion to withdraw a guilty plea. See, e.g., Manion v. State, 228 Ga. App. 270-271 (491 SE2d 506) (1997); compare Caine v. State, 266 Ga. 421-422 (467 SE2d 570) (1996) (comparing a direct appeal from a guilty plea with a direct appeal from a motion to withdraw a guilty plea); Frost v. State, 286 Ga. App. 694 (649 SE2d 878) (2007) (direct appeal after hearing held on motion to withdraw guilty plea).

Judgment vacated and case remanded with direction.

Phipps and Bernes, JJ., concur.

1

In Stockton v. State, 298 Ga. App. 84, 86 (679 SE2d 109) (2009), this court concluded that Stockton was entitled to an out-of-time appeal from the trial court’s order denying his motion to withdraw his guilty plea.

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Bluebook (online)

690 S.E.2d 623, 302 Ga. App. 42, 2010 Fulton County D. Rep. 140, 2010 Ga. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stockton-v-state-gactapp-2010.

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