Kennedy v. State , 267 Ga. App. 314 ( 2004 )

599 S.E.2d 290 (2004) 267 Ga.App. 314

KENNEDY
v.
The STATE.

No. A04A0374.

Court of Appeals of Georgia.

May 7, 2004.

Carnesale & Delan, Charles C. Flinn, Decatur, for appellant.

Geraldine Kennedy, pro se.

Gwendolyn R. Keyes, Solicitor-General, Sandra F. Lekan, Assistant Solicitor-General, for appellee.

ADAMS, Judge.

Geraldine Kennedy pled guilty to the offenses of driving under the influence, driving with an unlawful alcohol concentration, and failure to maintain lane. Kennedy later moved, pro se, to withdraw her guilty plea and requested that an attorney be appointed to represent her because she was indigent. The trial court held a hearing on Kennedy's motion to withdraw, but he did not appoint an attorney to represent her or inform her of her right to counsel. Following the hearing, the trial court denied the motion to withdraw the guilty plea, and this appeal followed.

Kennedy contends, and the State agrees, that this case is controlled by Fortson v. State, 272 Ga. 457, 532 S.E.2d 102 (2000), and that the trial court committed reversible error by failing to inform Kennedy of her right to representation at the hearing on her motion to withdraw her guilty plea, by failing to address her previous request for appointment of counsel, and by failing to ascertain whether she waived her right to counsel.

In Fortson our Supreme Court held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, and "the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel." Id. at 460(1), 532 S.E.2d 102. Thus, the Court reasoned, the trial court must inform the defendant of the right to counsel and ascertain whether that right has been waived. Id. See also Murray v. State, 265 Ga.App. 119, 592 S.E.2d 898 (2004). The Court in Fortson also rejected application of the harmless error analysis, being

instead persuaded by those majority of cases holding that reversal and remand is the appropriate remedy for violations of this constitutional right. Accordingly, we reverse and remand this case to the trial court for a re-hearing on [Kennedy's] motion to withdraw [her] guilty plea [said hearing] to be conducted in conformity with [the] opinion [in Fortson]. Fortson, 272 Ga. at 461(2), 532 S.E.2d 102.

Judgment reversed and case remanded.

RUFFIN, P.J., and ELDRIDGE, J., concur.