In Hanh v. State, the Georgia Court of Appeals reversed the ruling of the trial court and permitted the defendant to withdraw his guilty plea to child molestation charges.
The defendant pleaded guilty to the offense of child molestation and was sentenced to serve 20 years in prison. He filed a Motion to Vacate Void Sentence on the grounds that the trial court was required to impose a split sentence including at least one year of probation. In the motion, the defendant also requested to withdraw his guilty plea. At the hearing on the motion, the trial court vacated the sentence, and then resentenced the defendant to 20 years, with 19 to be served in prison and one to be served on probation. At the hearing, the defendant stated he “had another matter,” but the trial court concluded the hearing without ruling on his request to withdraw his guilty plea.
The defendant appealed, claiming that the trial court erred in not allowing him to withdraw his guilty plea. The Court of Appeals held that, because the original sentence was void and the defendant filed a motion to withdraw his guilty plea prior to resentencing, the defendant had a statutory right to withdraw his plea under O.C.G.A. § 17-7-93 (b) (“At any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.'”).
As a result, the Court concluded that the trial court erred in not allowing the defendant to withdraw his guilty plea.
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