Jacobo v. State, 011921 GACA, A20A2083

• Docket Nº: A20A2083
• Opinion Judge: BROWN, JUDGE.
• Party Name: JACOBO v. THE STATE.
• Attorney: Appellant Mr. Daniel Duane Morgan Appellee Mr. John Frank McClellan Jr. Appellee Ms Leigh Ellen Patterson
• Judge Panel: DILLARD, P. J., RICKMAN, P. J., and BROWN, J. Dillard, P.J., and Rickman, P J, concur.
• Case Date: January 19, 2021
• Court: Court of Appeals of Georgia

JACOBO

v.

THE STATE.

No. A20A2083

Court of Appeals of Georgia, Fourth Division

January 19, 2021

Superior Court Floyd County Case No. 09CR02585 Hon. WILLIAM F. SPARKS, Judge Appealed Order: May 19, 2020

Appellant Mr. Daniel Duane Morgan

Appellee Mr. John Frank McClellan Jr.

Appellee Ms Leigh Ellen Patterson

DILLARD, P. J., RICKMAN, P. J., and BROWN, J.

BROWN, JUDGE.

Hector Jacobo appeals from the trial court's order dismissing for lack of jurisdiction his extraordinary motion to withdraw guilty plea and vacate conviction. The record shows that in January 2010, Jacobo waived his right to counsel and pleaded guilty to possessing less than one ounce of marijuana. On May 5, 2020, Jacobo filed his extraordinary motion to withdraw guilty plea and vacate conviction, alleging that he was presently jailed and in "removal proceedings," and that his guilty plea had contributed greatly to his immigration dilemma. As grounds for his motion, Jacobo asserted that nothing in the record, including the waiver of counsel form, indicated that the trial court warned him that he could suffer negative immigration consequences as a result of his guilty plea, and that, therefore, his Sixth Amendment right to counsel and his substantive and procedural due process rights under the Fourteenth Amendment were violated. Concluding that the motion was filed outside the term of court and that Jacobo had made no contention that his sentence was void, the trial court dismissed the motion for lack of jurisdiction.

On appeal, Jacobo, who allegedly entered into an agreement for voluntary departure and is now living in his native Mexico, asserts that this Court should establish a new standard in situations such as his where it appears the trial court failed to "follow the rules" when taking his plea.¹ He contends that the "'void'/'voidable' distinction in this situation has led to a manifest injustice" and that "[a]rguing that the conviction in this case is 'void[, ]' or merely 'voidable' is an exercise in sophistry."

"[I]t is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea." (Citation and punctuation omitted.) Perez v. State, 333 Ga.App. 716 (776 S.E.2d 312) (2015). See also Bankston v. State, 307 Ga. 656, 657 (2) (837 S.E.2d 788) (2020) (defendant's motion to...