SMITH v. the STATE. , 827 S.E.2d 716 ( 2019 )

SECOND DIVISION
MILLER, P. J.,
REESE 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 29, 2019
In the Court of Appeals of Georgia
A19A0430. SMITH v. THE STATE.
REESE, Judge.
Tammy Terrell Smith appeals from a judgment of conviction on a charge of
possession of drug related objects.1 She contends that the trial court erred in denying
her motion to suppress. For the reasons set forth infra, we vacate the trial court’s
judgment and remand this case to the trial court with direction.
The record shows that, on June 6, 2017, Smith was a passenger in a car that
was stopped by Clayton County police officers. During the stop, the officers directed
Smith and the driver to exit the car and then searched the car, but they found no drugs
or other contraband. Another officer arrived, searched Smith, and found a glass pipe
containing methamphetamine residue inside a cigarette box in a pocket of her cargo
1
See OCGA § 16-13-32.2 (a).
pants. After Smith was arrested and charged, she filed a motion to suppress,
contending that the search of her person was performed without her consent, violated
her constitutional rights, and was otherwise illegal. Following a hearing, the court
denied the motion to suppress.
On July 16, 2018, the trial court conducted a “stipulated bench trial[ ]” during
which it adjudicated Smith guilty on the charge of possession of drug related objects
(hereinafter, “charge”).2 However, during the proceeding, the State told the court that
Smith was “pleading to[ ]” the charge, and Smith’s defense counsel informed the
court of the sentence to which the parties had agreed. Defense counsel also reminded
the court that the parties and the court had agreed that Smith would be released from
jail “during the pendency of the appeal,” presumably referring to the instant challenge
to the denial of the motion to suppress.
On July 17, 2018, Smith filed a Notice of Appeal, and the trial court clerk
transmitted the record to this Court. However, the trial court’s judgment of conviction
was inadvertently left out of the record, and the appeal was dismissed on November
5, 2018. After the trial court supplemented the record with the judgment order, the
appeal was reinstated on November 14, 2018.
2
The State nolle prossed a charge of possession of methamphetamine.
2
While reviewing the merits of Smith’s appeal, this Court observed that the trial
court’s judgment of conviction clearly states that Smith’s conviction was based upon
a negotiated guilty plea, as opposed to a judgment of guilt following a bench trial.3
Given the statements made by the State and defense counsel during the “stipulated
bench trial[,]” this Court is uncertain as to how to proceed in the instant appeal.
It is axiomatic that “[a] defendant waives any error in the denial of [her] motion
to suppress by pleading guilty[.] This is true even when the prosecutor and the trial
court agree that[,] if the defendant pleads guilty, [she] would still be able to appeal
the issue.”4 Consequently, if Smith’s conviction resulted from a negotiated guilty
plea, as shown on the judgment of conviction, she effectively waived her challenge
3
See State v. Hamby, 317 Ga. App. 480, n. 1 (731 SE2d 374) (2012) (“A trial
court’s oral pronouncement is not a judgment until it is put in writing and entered as
the judgment. Although a trial court’s oral pronouncements on the record may
provide insight on the intent of its subsequent written judgment, discrepancies
between the two pronouncements must be resolved in favor of the written judgment.”)
(citations and punctuation omitted).
4
Skinitis v. State, 271 Ga. App. 549, 550 (610 SE2d 571) (2005) (citations
omitted).
3
to the denial of her motion to suppress, and this Court would not reach the merits of
this appeal.5
Under these circumstances, we vacate the trial court’s judgment of conviction
and remand this case to the trial court to either correct the judgment to show that
Smith was convicted following the July 16, 2018 stipulated bench trial, or conduct
a guilty plea hearing that complies with Uniform Superior Court Rule 33.8 and, if
Smith pleads guilty and the trial court accepts the plea, issue a new judgment of
conviction based on the plea.
Judgment vacated and case remanded with direction. Miller, P. J., and
Hodges, J., concur.
5
We note, however, that Smith would not have waived a claim that her guilty
plea was invalid due to the trial court’s failure to comply with the requirements of
Uniform Superior Court Rule (“USCR”) 33.8 (B) and (C). See Thompson v. State,
240 Ga. App. 539, 540-541 (4) (524 SE2d 239) (1999) (“Subsection (B) of [USCR
33.8] states that before accepting a guilty plea the judge shall first inform the
defendant on the record that by entering the plea [she] waives: the right to trial by
jury; the presumption of innocence; the right to confront witnesses against oneself;
the right to subpoena witnesses; the right to testify and to offer other evidence; the
right to assistance of counsel during trial; and the right not to incriminate oneself.
Subsection (C) requires that the defendant be informed on the record of the maximum
possible sentence on the charge and that by pleading not guilty or remaining silent
and not entering a plea, one obtains a jury trial.”).
4