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Court Holds That Molestation Plea May be Withdrawn Due to Void Sentence

May 11, 2020

The Georgia Court of Appeals held that the defendant had a right to withdraw his guilty plea to two counts of child molestation due to the fact that the initial sentence he received was found to be void. Thus, the Court reversed the trial court’s denial of his motion to withdraw his plea.

In Rice v. State, the defendant entered guilty pleas to two counts of child molestation. He was sentenced to serve twenty years in prison on one count, followed by a consecutive ten years probation on the second count. He later filed a motion to vacate the sentence on the grounds that it failed to meet the split-sentence requirement of O.C.G.A. § 17-10-6.2 (b). The trial court denied the motion, and on appeal the Court of Appeals reversed, finding that the sentence was void. The case was then remanded for resentencing.

Prior to resentencing, the defendant then filed a motion to withdraw the guilty plea entirely. The defendant pointed out that Georgia case law has held that where a sentence has been found to be void, it is a nullity and it is as if no sentence had ever been entered. Therefore, the defendant stands in the same position as if he had pleaded guilty and not yet been sentenced. Under Georgia law, O.C.G.A. § 17-7-93, the defendant has a statutory right to withdraw his guilty plea at any time prior to sentencing.

However, the trial court denied his motion to withdraw the plea, citing the waiver of rights form that he signed at the time of the plea and the Court of Appeals’ explicit instructions following the first appeal that the case was being remanded for resentencing. This second appeal followed.

On appeal, the Court of Appeals first noted that the language in the plea waiver form did state that “the defendant now waives all rights of appeal to the process and procedure in this case; of the entry of his plea of guilty; and of the entry of judgment and the sentence of the court hereon.” The Court concluded, however, that this language did not expressly waive the right to withdraw the plea prior to sentencing. The Court distinguished this language from the waiver of rights in Blackwell v. State, where, at the time of the plea, the defendant “agreed that he would not be able to withdraw his plea once he had entered it, and that this was the case despite the fact that he would not be sentenced until a later date.”

The State argued that the defendant’s motion to withdraw the plea, filed in 2018, was untimely because it was filed years after the term of court expired following his plea in 2012. Therefore, the State contended that the trial court lacked jurisdiction to permit the withdrawal of the plea. The Court held that since the initial sentence was found to be void, the defendant was not limited to withdrawing the plea within a specific term of court. So long as the motion was filed prior to sentencing (or, in this case, resentencing), it was timely filed.

The State also argued that at the time the Court of Appeals vacated the defendant’s sentence in his first appeal, the Court remanded the case to the trial court with direction that the defendant be resentenced. It contended that, under the “law of the case” doctrine, the trial court was duty-bound to resentence the defendant. The Court rejected this argument, pointing out that there is an exception to this rule where the evidentiary posture of the case changes in the trial court after the appellate court’s decision. That is exactly what happened here once the defendant filed the motion to withdraw his plea.

As a result, the Court reversed the trial court’s denial of the defendant’s motion to withdraw his plea to the two counts of child molestation. The case was remanded back to the trial court once again. This time, the defendant’s original not-guilty plea will be reinstated and he will be entitled to a jury trial on these charges.

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