MCFADDEN, P. J., RICKMAN and MARKLE, JJ.
MCFADDEN, PRESIDING JUDGE.
Cason appeals from the trial court's denials of his pro
se motions to withdraw a guilty plea and for appointment of
counsel. Because Cason was already represented by counsel
when he filed the pro se motions, they were legal nullities
that should have been dismissed. So we vacate the trial court
denials of the motions and remand the case for the trial
court to dismiss the motions.
September 18, 2017, Cason appeared with counsel in the Grady
County Superior Court to enter a negotiated guilty plea to a
charge of possessing cocaine. At the hearing, the trial judge
indicated that because of Cason's criminal history she
was not inclined to follow the state's recommendation of
a probated sentence and instead was inclined to impose a
sentence of three years in confinement. The trial court then
suspended the proceedings in order to give Cason and his
counsel an opportunity to further consider the plea.
December 4, 2017, Cason returned to court with counsel in
order to enter a non-negotiated plea to the cocaine charge.
During the hearing, the trial court confirmed with Cason that
he understood that such a plea meant the court would sentence
him without any agreement between him and the state. At the
hearing, Cason also entered his written plea form on which he
swore that he understood, among other things, that any
recommendation regarding sentencing was not binding on the
court and that it was solely up to the court to determine the
sentence if he pled guilty. The trial court accepted the plea
and, after considering the testimony of a defense witness and
argument of counsel, sentenced Cason to serve three years in
confinement. The trial court's written judgment of
conviction and sentence was signed on December 4, 2017, and
filed on December 13, 2017.
December 20, 2017, Cason filed a pro se motion to withdraw
his guilty plea, claiming that he had not been advised that
the judge could reject the plea agreement of three years
probation and impose a sentence of incarceration. A hearing
on the pro se motion was scheduled for March 8, 2018. At the
hearing, Cason also filed a pro se motion for appointment of
new counsel. The trial judge denied the motion for
appointment of new counsel and proceeded with the hearing on
Cason's pro se motion to withdraw the guilty plea.
Several days after the hearing, on March 16, 2018, the trial
court entered an order denying the motion to withdraw the
guilty plea. Cason appeals, challenging the denial of his pro
criminal defendant in Georgia does not have the right to
represent himself and also be represented by an attorney, and
pro se filings by represented parties are therefore
unauthorized and without effect." Tolbert v.
Toole, 296 Ga. 357, 363 (3) (767 S.E.2d 24) (2014)
(citation and punctuation omitted). See also Williams v.
Moody, 287 Ga. 665, 669 (2) (697 S.E.2d 199) (2010)
("A pro se motion filed by a convicted defendant while
represented by counsel is 'unauthorized and without
effect.' [Cit.]"); Cotton v. State, 279 Ga.
358, 361 (5) (613 S.E.2d 628) (2005) (accord). Thus, a pro se
motion filed by a criminal defendant "is a [legal]
nullity if the defendant is represented by counsel at the
time he or she files the motion." Hernandez-Ramirez
v. State, 345 Ga.App. 402 (812 S.E.2d 798) (2018)
(citation omitted). See White v. State, 302 Ga. 315,
319 (2) (806 S.E.2d 489) (2017) (trial court correctly
treated defendant's "pro se filings as legal
nullities, because he was represented by counsel when he made
instant case, Cason was still represented by plea counsel
when he filed his pro se motions to withdraw his guilty plea
and for appointment of counsel. With regard to counsel's
continuing legal representation of a criminal defendant who
has entered a guilty plea, our Supreme Court has explained
at a minimum, legal representation continues - unless
interrupted by entry of an order allowing counsel to withdraw
or compliance with the requirements for substitution of
counsel, see USCR 4.3 (1)-(3) - through the end of the term
at which a trial court enters a judgment of conviction and
sentence on a guilty plea, during which time the court
retains authority to change its prior orders and judgments on
motion or sua sponte for the purpose of promoting justice.
See Tolbert[, supra at 362 (3)] ("A formal
withdrawal of counsel cannot be accomplished until after the
trial court issues an order permitting the withdrawal. Until
such an order properly is made and entered, no formal
withdrawal can occur and counsel remains counsel of
record." (citation and punctuation omitted)).
the trial court entered judgment of conviction and sentence
on Cason's guilty plea during the September 2017 term of
court. See OCGA § 15-6-3 (34) (D) (Grady County Superior
Court terms of court commence on the third Monday in March
and September). Because the record does not include an order
allowing Cason's plea counsel to withdraw or anything
indicating compliance with the requirements for substitution
of counsel prior to the end of that September term of court,
plea counsel's legal representation of Cason continued
until the end of that term. During that same term of court,
Cason filed the pro se motions at issue. Since Cason was
still represented by counsel at the time he filed his pro se
motions, those motions were legal nullities - unauthorized
and without effect - and should have been dismissed by the
trial court. See White, supra at 320 (2).
(Cason's pro se notice of appeal was filed on March 28,
2018, which was not during the same term of court when
judgment of conviction and sentence was entered, but was
during the following term of court. See OCGA § 15-6-3
(34) (D). As such, we find that the pro se notice of appeal
was not a legal nullity requiring dismissal. Compare
Clifton v. State, 346 Ga.App. 406, 408 (814 S.E.2d
441) (2018) (physical precedent)). "Accordingly, we
vacate the trial court's [denials of] the pro se
motion[s] and remand for entry of the appropriate order.
Brooks v. State, 301 Ga. 748, 749 (804 S.E.2d 1)
(2017)." Hernandez-Ramirez, supra at 403
vacated and case remanded with direction.
Rickman and ...