Agerton v. State, A89A0702
| Decision Date | 22 May 1989 |
| Docket Number | No. A89A0702,A89A0702 |
| Citation | 382 S.E.2d 417,191 Ga.App. 633 |
| Parties | AGERTON v. The STATE. |
| Court | Georgia Court of Appeals |
Ronnie J. Lane, Donalsonville, for appellant.
Rikard L. Bridges, Sol., for appellee.
Hughie P. Agerton pled guilty to charges of driving with a suspended driver's license, possession of marijuana, giving a false name to a police officer, failing to maintain no-fault insurance, and displaying an improper license plate. The trial court sentenced him to 12 months in prison, 4 months to be served, and fined him $1,930. He filed this timely appeal from the trial court's judgment on his plea alleging that the trial court erred by accepting his plea and entering judgment thereon because the guilty plea was not an informed, knowledgeable, and voluntary decision and he was not aware of the relevant circumstances and likely consequences of his decision. We agree and reverse.
There is no affirmative showing in the record that appellant voluntarily and understandingly entered pleas of guilty to the five charges. Indeed, the transcript of the guilty plea hearing reveals that none of the substantive requirements of Fed.R.Crim.P. 11, as interpreted in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was followed by the trial court in this case. See Rules 33.7, 33.8, and 33.9 of the Uniform Rules for the Superior Courts, as applicable in state courts, and Uniform State Court Rule 33.11. Although the State makes reference to matters raised at the initial arraignment, inquiry made to the State Court of Decatur County revealed no transcript was made of that hearing. The State has the burden of showing that appellant's plea was intelligently and voluntarily entered. Dean v. State, 177 Ga.App. 123, 125(2), 338 S.E.2d 711 (1985). Since the entire record, as designated by appellant to be included on appeal, fails to show that appellant was cognizant of all the rights he was waiving and the possible consequences of his plea, and since the State failed to take any action pursuant to OCGA § 5-6-41(f) to correct the alleged omission or to fill a silent record by use of extrinsic evidence affirmatively showing the guilty plea was knowing and voluntary, see id., the State failed to carry its burden. We will not consider factual representations raised in the State's brief which did not appear in the record. See generally Rogers v. State, 182 Ga.App. 599, 600(1), 356 S.E.2d 546 (1987).
The State's sole argument is that this appeal must be dismissed because appellant's failure to file a motion to withdraw his guilty plea under OCGA § 17-7-93(b) leaves a habeas corpus proceeding as his sole remedy. It is well established law that a timely filed appeal from a judgment entered on a guilty plea, such as the appeal brought by appellant, is a prescribed means to...
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Holt v. State, A92A0596
...is not the proper vehicle for contesting a guilty plea; rather it may be challenged for the first time on appeal. See Agerton v. State, 191 Ga.App. 633, 382 S.E.2d 417, citing Smith v. State, 253 Ga. 169, 316 S.E.2d The court in Ponder had difficulty with the "manifest unfair[ness]" of hold......
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Winfrey v. State
...dismissed on this basis, recognizing that a direct appeal is a "prescribed means to challenge the guilty plea." Agerton v. State , 191 Ga.App. 633, 633, 382 S.E.2d 417 (1989). At the same time, our appellate courts have made equally plain that under these circumstances our review is limited......
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Smith v. State, A94A0693
...a guilty plea, such as the appeal brought by appellant, is a prescribed means to challenge that guilty plea. [Cit.]" Agerton v. State, 191 Ga.App. 633, 382 S.E.2d 417 (1989). The dismissal of his motion below does not affect the procedural posture of this "Notwithstanding the acceptance of ......
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Lawson v. State, A92A0064
...125. Likewise, it is well established that a claim of involuntary plea may be raised for the first time on appeal. See Agerton v. State, 191 Ga.App. 633, 382 S.E.2d 417. A valid plea of guilty waives all defenses to the charge, known or unknown, including all defenses to the indictment. Car......