Marshall v. State, 47708

• Decision Date: 06 March 1973
• Docket Number: No. 47708,No. 2,47708,2
• Citation: 128 Ga.App. 413,197 S.E.2d 161
• Parties: W. T. MARSHALL, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 161

197 S.E.2d 161

128 Ga.App. 413

W. T. MARSHALL, Jr. v. The STATE.

No. 47708.

Court of Appeals of Georgia, Division No. 2.

March 6, 1973.

Conger & Conger, J. Willis Conger, Bainbridge, for appellant.

Joe M. Ray, Ralph H. Foster, Dist. Attys., Jesse G. Bowles, Cuthbert, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted for passing a bad check. He waived arraignment and plead nolo contendere, and was sentenced to serve twelve months. The sentence was formally pronounced by the trial court. Later, defendant made a motion of to be allowed to withdraw his plea, contending that such was necessary in order to avoid a miscarriage of justice. The court overruled defendant's motion to be allowed to withdraw his plea, and from that judgment defendant appeals to this court. Held:

1. Prior to pronouncement of sentence, a defendant is entitled, as a matter of right, to withdraw a plea of guilty. Code § 27-1404. After pronouncement of sentence, the motion to withdraw rests in the sound discretion of the trial court. Holston v. State, 103 Ga.App. 373(1), 119 S.E.2d 302. A plea of nolo contendere stands on the same footing as a plea of guilty. Wright v. State, 75 Ga.App. 764(1), 44 S.E.2d 569.

2. Here the defendant was represented at the time of entering his plea of nolo contendere by a lawyer of his own choice. Subsequently he employed another attorney and filed a motion to withdraw said plea. During the presentation of evidence on his motion he testified in a somewhat vague manner that he did not fully comprehend the effect of entering a plea of nolo contendere. But he made no contention whatever that he had been misled by state's counsel, by the court, or by any officer acting on behalf of the state. The mere contention that he did not understand or was misled by his own counsel affords no basis for withdrawal of his plea of guilty. Griffin v. State, 12 Ga.App. 615(6), 77 S.E. 1080. The rule is somewhat different where his counsel was appointed by the court.

3. The charge against the defendant was for passing a bad check. On a slip attached to the check appeared the words, obviously placed thereon by the drawee bank: 'Account frozen by court order.' If the question of guilt or innocence were involved in the motion to withdraw a plea of guilty, then it could be plausibly argued that this notation furnished some evidence favorable to the defendant; it certainly was not enough in and of itself to raise a prima facie presumption that he was guilty. See Code Ann. § 26-1704. But here we do not reach the question of guilt or innocence, because the guilt or innocence of the defendant is not material in a motion to withdraw a plea of guilty. In Boyett v. State, 81 Ga.App. 49, 51, 57 S.E.2d 831, 833, it is stated: 'While this evidence may have borne upon the credibility of the witnesses, the question of the innocence or guilt of the defendants is not involved upon the motion to withdraw the plea of guilty. (Rowland v. State, (72 Ga.App. 793, 35 S.E.2d 372) supra, 16 C.J. 397, § 728).' If guilt or innocence were involved, the state may have been able to show that only $1.00 was on deposit when the funds were frozen, or other sufficient reasons to show the check was worthless.

5. The check itself was not attached to or copied into the indictment, and cannot be urged as a basis for showing the indictment was void on its face.

6. It is contended that his counsel's allowing him to plead nolo contendere to this indictment was sufficient to show that his counsel was incompetent, and that he was,...