Ware v. State
| Decision Date | 06 March 1973 |
| Docket Number | No. 2,No. 47679,47679,2 |
| Citation | 128 Ga.App. 407,196 S.E.2d 896 |
| Parties | Ruby J. WARE v. The STATE |
| Court | Georgia Court of Appeals |
Palmour & Palmour, James E. Palmour, Gainesville, for appellant.
Jeff C. Wayne, Dist. Atty., Robert W. Lawson, Gainesville, for appellee.
Syllabus Opinion by the Court
Can an accused waive the right to withdraw a plea of guilty before judgment is pronounced? This appeal presents this question for the first time.
Defendant female was indicted for murder. At the arraignment hearing held July 14, 1972, defendant through competent counsel entered a plea of guilty to voluntary manslaughter. The able conscientious trial judge undertook to advise at length and in detail the defendant's legal rights with specific questions and explanations. During this interrogation the trial judge stated the statutory right contained in Code § 27-1404 for withdrawal of the plea of guilty at any time before judgment is pronounced. In doing so the court said 'Do you wish to withdraw your plea of guilty?' to which the accused answered 'No, Sir.' When the case was called for sentencing three weeks later defense counsel undertook before judgment was pronounced to withdraw the guilty plea. The court declined to permit such withdrawal stating: 'The defendant has freely, voluntarily, knowingly and intelligently relinquished, abandoned and waived her right to a jury trial and its full protection and her right to withdraw her plea of guilty as well as all other rights guaranteed to her by the Constitution and laws of the United States and the State of Georgia, as related to you and affected by this proceedings.' (R. 39) Sentence was then imposed for the maximum of twenty years. Counsel next sought to prevail upon the court to reduce the term by pointing out facts that might amount to accident or self-defense as well as the absence of a prior criminal record. The colloquy disclosed the court had made an independent investigation that contradicted counsel's version. At no time was any testimony presented in open court.
Expressing concern for defendant's rights the court then advised defendant and her counsel of the propriety of filing a motion to vacate the judgment for good cause so that an appeal could thereafter be taken for a review of the trial judge's rulings on his position that defendant had waived her right to nullify her guilty plea.
After hearing this motion to vacate in which the decision becomes one for the court's discretion, the judge entered a detailed order of denial. This order included findings of fact based on quotations from the arraignment hearing transcript. Additionally it contained specifications as to defendant's various constitutional and statutory rights under both the Federal and State Constitutions that the court had considered. There was a specific conclusion that defendant had not been denied her statutory right authorizing withdrawal of a plea of guilty at any time before judgment is pronounced because of her waiver or estoppel.
Historically our statute giving such right to withdraw a guilty plea first appeared in substantially today's codal words at page 834 in Cobb's Digest of the Laws of the State of Georgia published in 1851. The pertinent language reads: 'But at any time before judgment is pronounced, such prisoner may withdraw the plea of 'guilty,' and plead not guilty, and such former plea shall not be given in evidence against him or her on his or her trial.' Every code beginning with our 1863 version has contained substantially these words which now appear as a part of our present Code in § 27-1404. The continuance of this substantial verbiage shows the importance our law makers have attached to this right.
The construction of this proviso favorably to defendants in the decided cases confirms judicial concern for this protective prerogative. '(I)t is the signed writing and not the previous oral announcement, which constitutes the legal sentence.' Morgan v. Mount, 195 Ga. 281, 24 S.E.2d 17. '(A)ny oral announcement by the judge as to what the sentence is to be, is no part of such pronouncement.' Wright v. State, 75 Ga.App. 764, 767, 44 S.E.2d 569, 571. See also Blackwell v. State, 121 Ga.App. 37, 172 S.E.2d 652 which followed the leading case of Clark v. State, 72 Ga.App. 603, 34 S.E.2d 608, wherein is discussed the cases dealing with this Code section and where it was ruled a defendant could even withdraw his plea of guilty after oral announcement of the sentence.
In the case sub judice defendant attempted to withdraw her plea of guilty and substitute a plea of not guilty before the judge made any attempt to sentence her. 'Before sentence is passed one accused of a crime may withdraw his plea of guilty as a matter of right.' Higgins v. State, 92 Ga.App. 739, 741, 90 S.E.2d 40, 41 and citations therein. 'The right given a defendant . . . to withdraw his plea of 'guilty' and plead 'not guilty' at any time before judgment is pronounced is not qualified or limited.' Fowler v. State, 41 Ga.App. 333, 153 S.E. 90. This right has even been upheld where the witnesses have been dismissed, jurors discharged and sentence delayed at defendant's request. Nobles v. State, 17 Ga.App. 382, 86 S.E. 1073.
The trial judge's finding was based upon construing defendant's answers to his interrogation as amounting to a specific waiver of any right to withdraw her guilty plea. We cannot accept this view. Even though the traditional statute of the female figure of Justice shows her to wear a blindfold, Anglo-Saxon jurisprudence does not permit such legendary deprivation of the eyesight to prevent recognition by the courts of the realities of human nature. In making his decision as to acceptance of a guilty plea any trial judge might well expect an affirmative answer to his question 'Do you waive your right to withdraw your plea of guilty?' This is due to an accused's natural reaction which would be to construe the question as suggesting a 'Yes, Sir' reply as a condition to the court's acceptance of such plea. Nor should we blind our judicial mental vision to the reality of the accused's hope of earning the good will of the sentencing judge so as to obtain a more lenient sentence.
Under these circumstances we hold the propounding of such query by the court to the accused as being contrary to the...
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...Carrindine to two years. 4 Of course the law does not recognize an oral sentence as a judgment of the court. See Ware v. State, 128 Ga.App. 407, 409, 196 S.E.2d 896 (1973). However, because appellant spent time in jail under this sentence, the trial court could not increase this sentence to......
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Chives v. State
...is clear and unambiguous on its face. This is a long-standing statutory right. See, e.g., State v. Germany, supra; Ware v. State, 128 Ga.App. 407, 196 S.E.2d 896. When, as here, the plain language of the statute is susceptible of only one meaning, courts must follow that meaning unless to d......
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Jackson v. State
...the vilest and most abhorrent are protected." People v. Gitlow, 234 N.Y. 132, 158, 136 N.E. 317 (dissenting opinion); Ware v. State, 128 Ga.App. 407, 196 S.E.2d 896 (1973). Out of an abundance of caution, therefore, we would hold that the trial court erred in denying appellant's motion for ......
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Blackwell v. State, S16A0270.
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