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Court of Appeals Reverses Dismissal of Motion to Withdraw Child Molestation Plea

May 22, 2019

The Georgia Court of Appeals held that the defendant's motion to withdraw his guilty plea to charges of sexual exploitation of children, aggravated child molestation, and aggravated sexual battery was timely filed despite the fact that it was not filed in the same term of court as his sentencing hearing.

The Court found that the trial court erred in dismissing the defendant’s motion.

In Mullins v. State, the defendant entered a guilty plea on September 6, 2017, to two counts of child molestation, two counts of sexual exploitation of children, one count of aggravated child molestation and one count of aggravated sexual battery. The trial court then orally pronounced a sentence of life, with the first 25 years to be served in prison and the balance on probation. While the judge signed the written sentence on September 6, 2017, it was not filed in the clerk’s office until October 9, 2017.

The defendant filed his motion to withdraw plea on October 20, 2017, less than two weeks after the sentence was filed. The trial court dismissed the defendant’s motion, concluding that the motion was untimely since it was not filed during the same term of court in which his sentence was pronounced. In Brantley County, there are two terms of court per year with one beginning on the fourth Monday in January and the other on the second Monday in September.

It is true that 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.” The Court of Appeals also noted that a motion filed outside the term of court in which the sentence was entered is untimely, and a trial court does not have the authority or jurisdiction to consider an untimely motion to withdraw plea.

However, the Court pointed out that it has long been recognized that even where the sentence has been orally pronounced, the sentence and conviction has no legal effect until it is signed by the judge in writing and filed with the clerk of court. It was further stressed that until the sentence is reduced to writing and filed with the clerk of court, there has been no judgment of conviction and technically the criminal case against the defendant is still pending.

In light of these principles, the Court held that where a defendant’s sentence is pronounced during one term of court but is not actually filed with the clerk until the next term, a defendant’s motion to withdraw his guilty plea is considered to be timely when it is filed within the same term of court in which the written order was filed. Here, that was certainly the case.

As a result, the Court reversed the dismissal of the defendant’s motion and remanded the case back to the trial court for it to consider the merits of whether his guilty plea should be withdrawn.

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