Kaiser v. State

• Decision Date: 28 March 2007
• Docket Number: No. A06A1767.,A06A1767.
• Parties: KAISER v. The STATE.
• Court: Georgia Court of Appeals

285 Ga. App. 63

646 S.E.2d 84

KAISER v. The STATE.

No. A06A1767.

Court of Appeals of Georgia.

March 28, 2007.

Reconsideration Denied April 13, 2007.

Alan B. Kaiser, pro se.

W. Kendall Wynne, Jr., District Attorney, for appellee.

ADAMS, Judge.

Alan B. Kaiser appeals from the trial court's order denying his motion to withdraw his guilty plea as to five counts of a multi-count indictment against him. Because we find that Kaiser had an absolute right to withdraw his plea, we reverse.

Kaiser pled guilty, pursuant to a negotiated plea, to more than 60 counts of the unauthorized manufacture, possession and dispensation of controlled substances. In return, the state moved to nolle prosequi one count of racketeering, one count of attempt to manufacture methamphetamine and one count of conspiracy. Kaiser entered his plea on February 24, 2004, and was sentenced the same day to serve thirty years, ten years in confinement and the balance on probation, provided that he pay various fines, fees, and surcharges and that he comply with certain special conditions of probation. One of the negotiated conditions prohibited Kaiser from practicing medicine in Georgia or any state contiguous to Georgia. At the sentencing hearing, however, the trial court modified that negotiated condition, sua sponte, to prohibit Kaiser from ever practicing medicine in Georgia or the surrounding states.

Kaiser subsequently moved to modify his sentence, arguing that this special condition rendered his sentence indeterminate and thus illegal. The trial court denied the motion, and Kaiser appealed. This Court reversed, holding that the sentence violated OCGA § 17-10-1 (a)(1) requiring that a court prescribe a determinate sentence. This Court vacated Kaiser's sentence in its entirety¹ and remanded the case to the trial court for resentencing. The remittitur was returned on October 25, 2005. Kaiser v. State, 275 Ga.App. 684, 686(2), 621 S.E.2d 802 (2005).

Three days later, on October 28, Kaiser moved to withdraw his guilty plea as to Counts 2, 5, 6, 7, and 8 of the indictment.² Subsequently, on February 14, 2006, the trial court signed orders resentencing Kaiser in accordance with the parties' previously negotiated plea agreement. On February 17, the trial court signed an order dismissing Kaiser's motion to withdraw his guilty plea, holding that it did not have jurisdiction to entertain the motion because it was filed after the term of court in which the original sentence was imposed. The order indicated that it was signed nunc pro tunc as of February 14.³ On March 13, Kaiser filed an "Objection to Plea as Negotiated and Request to Reissue Sentences" as "non-negotiated," but he filed this appeal before the trial court had the opportunity to address his objection.

1. Kaiser asserts that the trial court erred in dismissing his motion to withdraw because he had a statutory right under OCGA § 17-7-93(b) to withdraw his plea. He argues that because his sentence was void, he was never properly sentenced and thus could withdraw his sentence as of right. The state argues, however, that Kaiser was required to file his motion to withdraw his plea in the same term in which he was sentenced and that the court was without jurisdiction to consider a motion filed two years and seven terms after the original sentence.⁴

This issue implicates three overlapping legal principles. The first principle, codified in OCGA § 17-7-93(b), provides that "[a]t any time before judgment is pronounced, the accused person may withdraw the plea of `guilty' and plead `not guilty. . . .'" The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing. State v. Germany, 246 Ga. 455, 456(1), 271 S.E.2d 851 (1980). A defendant, therefore, has an absolute right to withdraw his plea before sentence is pronounced, but after sentencing the decision whether to grant a withdrawal motion lies within the trial court's discretion. Williams v. State, 279 Ga.App. 388, 389, 631 S.E.2d 417 (2006); Griffin v. State, 12 Ga.App. 615, 620(4), 77 S.E. 1080 (1913). See also U. Superior Court Rule 33.12(B) (no withdrawal as matter of right after sentence is pronounced unless defendant shows that withdrawal is necessary to correct a manifest injustice).

Under the second principle, a defendant must file a post-sentencing motion to withdraw a guilty plea in the same term in which he was sentenced. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea. Rubiani v. State, 279 Ga. 299, 612 S.E.2d 798 (2005). Thus, "after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings." (Citation omitted.) Sherwood v. State, 188 Ga.App. 295(1), 372 S.E.2d 677 (1988). This is a judicially created rule, which evolved from the established common law tenet that a court cannot set aside or alter a judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the original term. See e.g., U.S. v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914); Conlogue v. State, 243 Ga. 141, 142(6), 253 S.E.2d 168 (1979), overruled on other grounds Smith v. State, 253 Ga. 169, 316 S.E.2d 757 (1984); Miraglia v. Bryson, 152 Ga. 828, 111 S.E. 655 (1922); State v. Kight, 175 Ga.App. 65, 66-67(1), 332 S.E.2d 363 (1985); Moore v. State, 116 Ga.App. 774, 158 S.E.2d 926 (1967).

The third principle provides that a finding of a void sentence, following a guilty plea, does not automatically discharge the defendant from his plea. Rather, the proper procedure is to return the defendant to the trial court for the imposition of a legal sentence. Heard v. Gill, 204 Ga. 261, 49 S.E.2d 656 (1948); Sherman v. State, 142 Ga.App. 691, 692, 237 S.E.2d 5 (1977); Fleming v. State, 113 Ga.App. 113(2), 147 S.E.2d 480 (1966); King v. State, 103 Ga.App. 272, 276(3), 119 S.E.2d 77 (1961).

The application of these principles to a case such as this, in which the defendant seeks to withdraw his guilty plea following the entry of a void sentence, has resulted in the emergence of two distinct and contradictory lines of authority.

Mullins Line of Authority

The first line, relied upon by Kaiser, holds that a defendant may withdraw his guilty plea as of right up until the time of resentencing. Mullins v. State, 134 Ga.App. 243, 214 S.E.2d 1 (1975). Mullins' sentence was void and he filed a written motion to withdraw his prior guilty plea. This Court held the trial court erred in denying Mullins' motion because "[a] sentence entered in a criminal case which is unauthorized by law is a nullity and void. Where the sentence is void, a valid sentence may be imposed by the court, until which time the defendant stands as though convicted but not sentenced." (Citations omitted.) Id. at 243(1), 214 S.E.2d 1. The Court noted that Georgia statutory law allowed a defendant to withdraw a guilty plea at any time before judgment, and that "`judgment' in this context means `sentence.'" Id. at 243(2), 214 S.E.2d 1. Thus, the Court found that Mullins had an absolute right to withdraw his plea prior to re-sentencing. Id.

Although it is unclear whether Mullins filed his written motion in the same term of court in which the original, void sentence was issued or at a later term,⁵ such a distinction is irrelevant under the Mullins reasoning. Where a void sentence has been entered, it is as if no sentence has been entered at all, and the defendant stands in the same position as if he had pled guilty and not yet been sentenced. And pursuant to OCGA § 17-7-93(b), the defendant may withdraw his plea as of right prior to sentencing. Thus, while Mullins did not specifically address the judicially-created jurisdictional rule requiring that the motion be filed in the same term in which the defendant is sentenced, that rule is not implicated under the Court's reasoning.

This reasoning is consistent with other authority indicating that a trial court retains jurisdiction over a case past the term of conviction where no legal sentence has been entered. "Where a valid sentence is not passed at the term of court in which the conviction occurs, the court does not lose jurisdiction of the case and may pronounce sentence at a succeeding term. Davis v. State, 192 Ga. 648, 16 S.E.2d 428 (1941)." Sherman v. State, 142 Ga.App. at 692, 237 S.E.2d 5. See also Barber v. State, 240 Ga.App. 156, 157(1)(b), 522 S.E.2d 528 (1999) (outside term of court, trial court has subject matter jurisdiction to invalidate a sentence if it is, in fact, void). In fact, where a sentence is void ab initio, a trial court has both the jurisdiction and the obligation to vacate the sentence. Syms v. State, 244 Ga.App. 21, 22(2), 534 S.E.2d 502 (2000). And a void sentence may be corrected at any time, even though the time for modifying a sentence under OCGA § 17-10-1(f) has passed. See Green v. State, 273 Ga.App. 654, 615 S.E.2d 818 (2005).

The Mullins case remains good law and was cited with approval in the subsequent case of State v. Clark, 191 Ga.App. 708, 382 S.E.2d 670 (1989), for the proposition that a trial court is authorized to allow a defendant to withdraw his plea prior to re-sentencing, but neither that case nor any other cases citing Mullins have specifically addressed the issue before us. See, e.g., Crumbley v. State, 261 Ga. 610, 611(1), 409 S.E.2d 517 (1991); Thomas v. State, 272 Ga.App. 279, 612 S.E.2d 99 (2005) (distinguishing Mullins); State v. Stuckey, 145 Ga.App. 434, 434-435, 243 S.E.2d 627 (1978) (cited for the proposition that "[t]he posture of this case is that the defendant has been validly convicted but has had a void sentence imposed which in law amounts to no sentence at all.") (emphasis omitted). See also Jack Goger, Daniel's Georgia Criminal Trial Practice, § 26-1, n. 4 (2007 ed.) (after void sentence, defendant...