Pedro Alvardo-Valle v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 16, 2019
The Court of Appeals hereby passes the following order:
A20D0083. PEDRO ALVARDO-VALLE v. THE STATE.
Pedro Alvardo-Valle pled guilty to criminal attempt to commit kidnapping with
bodily injury and aggravated assault in 2017. Alvardo-Valle filed a motion to
withdraw his guilty plea. The trial court dismissed the motion, and Alvardo-Valle
filed a timely application for discretionary review.1
Based on the trial court’s order denying Alvardo-Valle’s motion to withdraw
his guilty plea, the motion was filed outside the term of court of his judgment of
conviction. See Ellison v. State, 283 Ga. 461, 461 (660 SE2d 373) (2008) (noting that
a motion to withdraw a guilty plea must be filed in the same term of court in which
the plea was entered and a trial court lacks jurisdiction to grant an untimely motion).
However, orders resolving out-of-time motions to withdraw guilty pleas have been
treated by our Supreme Court as directly appealable. See id.; Smith v. State, 283 Ga.
376, 376-377 (659 SE2d 380) (2008). Thus, it appears that the trial court’s order is
subject to direct appeal.
We will grant an otherwise timely application for discretionary appeal if the
lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly,
this application is hereby GRANTED, and Alvardo-Valle shall have ten days from
the date of this order to file his notice of appeal with the trial court. If he has already
filed a notice of appeal in the trial court, he need not file an additional notice. The
1
The order from which Alvardo-Valle appeals is not file-stamped, but the
application nonetheless appears to be timely based on the date the order was signed.
clerk of the trial court is DIRECTED to include a copy of this order in the records
transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/16/2019
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.