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Usman v. State

Court of Appeals of Georgia

January 7, 2015

USMAN
v.
THE STATE

Cert. applied for.

Guilty plea; motion to withdraw. Glynn Superior Court. Before Judge Lane.

James C. Bonner, Jr., Long D. Vo, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Miller, Judge.

Jordan Usman entered into a nonnegotiated plea of guilty to two counts of child molestation (OCGA § 16-6-4 (a) (1)). Usman appeals from his conviction, contending that the trial court erred in failing to properly advise him of his right to withdraw his plea. For the reasons that follow, we affirm.

A defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea, and thus, the merits of [Usman's] appeal can be addressed only if the issues he seeks to raise can be resolved by facts appearing in the record, including the transcript of the guilty plea hearing.

(Citation omitted.) Denova v. State, 268 Ga.App. 16 (601 S.E.2d 400) (2004).

Usman entered his guilty plea on November 5, 2012. The record shows, and Usman concedes, that he entered a nonnegotiated plea. The Superior Court of Glynn County held a sentencing hearing on January 16, 2013, and the trial court's judgment was entered that same day. Two days later, the trial court called Usman to court to inform him of his right to appeal his conviction and sentence, which it had failed to do at the previous hearing. The trial court also informed Usman that he had the right to an appellate attorney if he was indigent. The trial court, however, did not inform Usman that he [330 Ga.App. 522] could move to withdraw his guilty plea. Usman was represented by counsel at his plea and sentencing hearings, including at the hearing when the trial court advised Usman of his right to appeal his conviction.

Usman filed a notice of appeal on February 12, 2013. Thereafter, on June 21, 2013, Usman filed a motion in superior court to withdraw his guilty plea, which the trial court denied because Usman filed his motion outside the term of court.

On appeal, Usman contends that the trial court misled him that the appropriate procedure for challenging his convictions was to file a direct appeal rather than a motion to withdraw his guilty plea within the term of court, and he relied on this advice to his detriment because his motion to withdraw was denied since it was filed out of term. We disagree.

OCGA ยง 17-7-93 (b) provides, in relevant part, that, at any time before judgment is pronounced, the accused person may withdraw the plea of guilty and plead ...

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