Ryan Andrew Mullins v. State , 349 Ga. App. 890 ( 2019 )

THIRD DIVISION
DILLARD, C. J.,
GOBEIL and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 19, 2019
In the Court of Appeals of Georgia
A19A0345. RYAN ANDREW MULLINS v. THE STATE.
GOBEIL, Judge.
Ryan Andrew Mullins appeals from an order of the Brantley County Superior
Court dismissing his motion to withdraw his guilty plea for lack of jurisdiction.
Mullins contends that the trial court erred in finding that his motion was filed outside
the term of court in which he was sentenced and was therefore untimely. We agree
and reverse the trial court’s order.
The facts are undisputed and show that at a hearing held on September 6, 2017,
Mullins pled guilty to two counts of child molestation, two counts of sexual
exploitation of children, and a single count each of aggravated child molestation and
aggravated sexual battery.1 After accepting Mullins’s plea, the trial court followed the
1
The record shows that this was a negotiated guilty plea, with the State
agreeing to nolle prosse four of 10 counts on which Mullins had been indicted,
State’s sentencing recommendation and orally pronounced a sentence of life, with the
first 25 years to be served in confinement and the remainder to be served on
probation. The trial court reduced this sentence to writing, and the judge signed the
written judgment of conviction and sentence on September 6, 2017. That document,
however, was not filed with the clerk of court until October 9, 2017. Less than two
weeks later, on October 20, 2017, Mullins filed a motion to withdraw his guilty plea.
Following a hearing, the trial court dismissed that motion, and Mullins now appeals
the order of dismissal.
Under Georgia law, “[a] motion to withdraw a guilty plea must be filed within
the same term of court as the sentence entered on the guilty plea.” Brooks v. State,
301 Ga. 748, 751 (2) (804 SE2d 1) (2017) (citation and punctuation omitted). A
motion filed outside the term of court in which the sentence was entered is considered
untimely, and a trial court lacks jurisdiction to consider an untimely motion to
withdraw a guilty plea. Id. Brantley County has two terms of court per year and,
during the time period relevant to this appeal, those terms began on the fourth
including one count of aggravated child molestation, one count of enticing a child for
indecent purposes, and two counts of sexual exploitation of children.
2
Monday in January and the second Monday in September.2 OCGA § 15-6-3 (41) (B)
(2015). Thus, Mullins’s guilty plea hearing was held, sentence was pronounced
orally, and the sentencing order was signed on September 6, 2017, during the January
2017 term of court. The written judgment of conviction and sentence, however, was
not entered until the September term of court, which began on September 11, 2017.
And it was during that term of court that Mullins filed his motion to withdraw his
guilty plea.
In dismissing Mullins’s motion, the trial court found that because sentence was
orally pronounced and the court signed the judgment of conviction and sentence
during the January term of court, Mullins was required to file his motion to withdraw
during that same term. This holding, however, is in direct conflict with relevant
precedent. Georgia’s appellate courts have long recognized that even where a judge
orally pronounces a sentence, no sentence or conviction actually exists until it is
reduced to writing and filed with the clerk of court. See Curry v. State, 248 Ga. 183,
185 (4) (281 SE2d 604) (1981); Hantz v. State, 337 Ga. App. 675, 678 (788 SE2d
567) (2016); Allen v. State, 333 Ga. App. 853, 855 (1) (777 SE2d 699) (2015); Young
2
In 2018, the General Assembly amended OCGA § 15-6-3 so that, effective
January 1, 2019, the terms of the Brantley County Superior Court begin on the fourth
Monday of February and August. OCGA § 15-6-3 (41) (B) (2018).
3
v. State, 328 Ga. App. 91, 92 (761 SE2d 504) (2014). See also OCGA § 5-6-31 (“[t]he
filing with the clerk of a judgment, signed by the judge, constitutes the entry of a
judgment”). And until the judgment of conviction and sentence is reduced to writing
and filed with the clerk of court, criminal proceedings remain pending against the
defendant. Young, 328 Ga. App. at 92.
Relying on the foregoing principles, this Court has held that under
circumstances such as these, where sentence is pronounced during one term of court
but the written order is not filed until the next term, a defendant’s motion to withdraw
his guilty plea is “timely filed within the term in which the sentence was entered, that
is, filed by the clerk.” Allen, 333 Ga. App. at 855 (1). See also Hantz, 337 Ga. App.
at 678; Young, 328 Ga. App. at 92. Accordingly, and as the State concedes in its
appellate brief,3 the trial court erred in dismissing Mullins’s motion to withdraw his
guilty plea as untimely. We therefore reverse the order of dismissal and remand this
case to the trial court for a decision on the merits of Mullins’s motion.
Judgment reversed and case remanded. Dillard, C. J., and Hodges, J., concur.
3
In the trial court, the State opposed the motion on the grounds that it was
untimely. On appeal, however, the State concedes that in light of Allen and other
relevant precedent, Mullins’s motion to withdraw his guilty plea was timely.
4