GOBEIL, COOMER and HODGES, JJ.
Deeds appeals from the Superior Court of Telfair County's
dismissal of his motion to withdraw a guilty plea. For the
following reasons, we affirm.
was indicted on four counts of aggravated assault, one count
of criminal attempt to commit a felony (murder), and two
counts of cruelty to children in the first degree on November
2, 2015. On April 4, 2016, Deeds pleaded guilty pursuant to
North Carolina v. Alford, 400 U.S. 25 (91 S.Ct. 160,
27 L.Ed.2d 162) (1970) to one count of aggravated assault.
After a hearing the same day, the trial court fined Deeds $1,
000 and placed him on probation for five years, with his
probation terminating after two years of compliance. Deeds
was sentenced as a first offender. On February 23, 2017,
Deeds filed a motion to withdraw his guilty plea. He
subsequently amended his motion on February 21, 2018, and
February 26, 2018. On March 8, 2018, the trial court
dismissed Deeds's motion, holding that it lacked
jurisdiction to consider the motion because it was filed
after the expiration of the term of court in which Deeds was
sentenced and was therefore untimely. This appeal followed.
review of the trial court's denial of Deeds's motion
to withdraw his guilty plea is de novo and involves
application of the law to undisputed facts. See Simmons
v. State, 315 Ga.App. 82, 83 (2) (726 S.E.2d 573)
sole enumeration of error, Deeds contends that the trial
court erred in dismissing his motion to withdraw his guilty
plea on the grounds that the motion was out-of-term and that
the court therefore lacked jurisdiction. We disagree.
undisputed facts show that Deeds filed his motion to withdraw
his guilty plea in February of 2017 pursuant to Uniform
Superior Court Rule 33.12, which provides, in relevant part:
"[a]fter sentence is pronounced, the judge should allow
the defendant to withdraw a plea of guilty or nolo contendere
whenever the defendant, upon a timely motion for withdrawal,
proves that withdrawal is necessary to correct a manifest
injustice." Georgia law
is well settled that when the term of court has expired in
which a defendant was sentenced pursuant to a guilty plea,
the trial court lacks jurisdiction to allow the withdrawal of
the plea. Once the term of court in which a defendant was
sentenced has expired, the only available means for an
appellant to withdraw his guilty plea is through habeas
v. State, 279 Ga. 613, 614 (619 S.E.2d 608) (2005)
does not dispute that he filed the motion to withdraw his
guilty plea out-of-term. Instead, Deeds contends that trial
courts retain jurisdiction to consider out-of-term motions
for discretionary withdrawal of first offender guilty pleas.
In support of his contention, Deeds relies heavily on
Tripp v. State, 223 Ga.App. 73, 73 (476 S.E.2d 844)
(1996) (physical precedent only), in which we held that a
trial court had jurisdiction to consider a defendant's
motion to withdraw his first offender guilty plea under
Uniform Superior Court Rule 33.9 even though more than one
term of court had expired between the time the trial court
entered the defendant's guilty plea and sentence and the
time the defendant filed his motion to withdraw. However,
Tripp is not binding authority. See
Simmons, 315 Ga.App. at 85 (2), n. 21 ("To the
extent Tripp [ ] suggests that the trial court
retains jurisdiction to consider a motion to withdraw guilty
plea until the expiration of the term of court in which an
adjudication of guilt is entered . . ., Tripp is . .
. not binding authority." (citations omitted)).
on Tripp, Deeds argues that because Georgia's
First Offender Act permits adjudication and re-sentencing
beyond the term in which the plea is entered, the sentencing
court also retains jurisdiction to consider a motion to
withdraw a plea to remedy a manifest injustice. Former OCGA
§ 42-8-60 (b), applicable at the time of Deeds's
plea, provided, in relevant part:
Upon violation by the defendant of the terms of probation,
upon a conviction for another crime during the period of
probation, or upon the court determining that the defendant
is or was not eligible for sentencing under this article, the
court may enter an adjudication of guilt and proceed as
otherwise provided by law.
A trial court's ability to modify a defendant's
sentence under this Code section is limited. The trial court
may only enter an adjudication of guilt and re-sentence a
defendant if there is a "violation by the defendant of
the terms of probation" or "conviction for another
crime during the period of probation" or "the court
determin[es] that the defendant is or was not eligible"
for first offender treatment. Former OCGA § 42-8-60 (b).
The First Offender Act does not expressly modify the
well-established rule that a trial court lacks jurisdiction
to allow the withdrawal of a guilty plea when the term of
court has expired in which the defendant was sentenced
pursuant to the guilty plea. Although this rule deprives the
trial court of jurisdiction to allow a defendant to withdraw
his plea upon expiration of the term of court in which
sentencing occurred, it does not deprive a defendant of the
opportunity to seek redress of a manifest injustice through a
habeas petition. In the absence of an express statutory
modification of the general rule, we conclude that trial
court lacked jurisdiction to consider Deeds's motion to
withdraw his first offender guilty plea because it was not
made within the term of court in which he was sentenced.
Deeds has not been denied any rights under Georgia or federal
law resulting from the trial court's dismissal of his
motion to withdraw his guilty plea. Deeds's guilty plea
may only be withdrawn in a habeas corpus proceeding. See
Dupree v. State, 279 Ga. 614; Simmons, 315
Ga.App. at 84 (2). Therefore, the trial court's dismissal
of Deeds's motion was appropriate.