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Bonner v. State6/28/2004
Bobby E. Bonner appeals the sentence imposed pursuant to his guilty plea to the misdemeanor offense of driving under the influence of alcohol. He contends the trial court erred by "sentencing [him] a second time for the same offense for which he had already been sentenced, which sentence he had duly completed, in violation of the prohibition against double jeopardy."
The record shows that Bonner was cited for driving under the influence and summoned to appear in the local probate court. Then, upon his request for trial by jury, his case was transferred to the superior court. On July 23, 2001, he pled guilty to misdemeanor DUI and received a sentence of twelve months to serve five days in confinement with the remainder on probation, to perform fifty hours of community service, to pay a $300 fine, and to pay certain statutorily required fees. A new term for the superior court began on the first Monday of August. OCGA § 15-6-3(28)(E).
On August 22, 2001, Bonner filed a pro se motion to withdraw his guilty plea. Following a hearing on February 7, 2002, the trial court denied his motion. Bonner next filed a pro se appeal to this court challenging the denial of his motion to withdraw his guilty plea.
Bonner was appointed counsel, and on April 28, 2003, his defense counsel filed a motion for a new trial. Then, pursuant to an agreement between Bonner and the prosecution, Bonner withdrew his appeal, and the trial court on June 13, 2003, granted Bonner's motion for a new trial, allowing Bonner to withdraw his guilty plea nunc pro tunc to February 7, 2002.
Upon his second guilty plea, on June 18, 2003, Bonner was sentenced to 12 months confinement, but upon service of 60 days in the county jail the remainder of his sentence would be served on probation, but his sentence to confinement would be suspended upon his entry into a detention center. He was also ordered to complete 40 hours of community service, to complete a DUI risk reduction program, and to pay certain statutorily mandated fees. The trial court further provided that Bonner would receive credit for amounts already paid on fines.
On July 16, 2003, Bonner filed a pro se extraordinary motion for a new trial contending that his appointed defense counsel was ineffective, the trial court abused its powers by imposing an excessive sentence because Bonner had exercised his right to appeal his earlier guilty plea, and he had been subjected to cruel and unusual punishment because the sheriff refused him proper medication and refused *171 to return him to the hospital. Bonner also contended that the assistant district attorney had misinformed him for two years that no tape of his arrest for DUI existed, and then produced such a tape when his case was again scheduled for trial.
The trial court treated this motion as a motion to withdraw his guilty plea because the motion was filed within 30 days of the entry of judgment, and thus could not qualify as an "extraordinary motion for a new trial, and because a motion for new trial is not a proper vehicle to challenge a guilty plea." Subsequently, the trial court denied Bonner's motion to withdraw his guilty plea, and this appeal followed.
1. Pretermitting the issue raised in Bonner's enumeration of error, we find that the second conviction and sentence imposed by the superior court are nullities and must be vacated. Because Bonner's first **480 motion to withdraw his guilty plea was not filed within the same term of court as his plea was entered, the court had no jurisdiction to grant Bonner's motion to withdraw his guilty plea and grant him a new trial. "[T]he general rule is that after expiration of the term at which the judgment was entered a court cannot set aside or alter its final judgment unless the proceeding for that purpose w
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