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Bonner v. State6/28/2004
as begun during the term. [Cits.]" Moore v. State, 116 Ga.App. 774, 158 S.E.2d 926 (1967). Of course, in this case Bonner did not attempt to withdraw his guilty plea within the same term of court.
In Griffin v. State, 12 Ga.App. 615, 618(1), 77 S.E. 1080 (1913), this court held that a defendant has a right to file and have determined a motion to withdraw a guilty plea during the term during which the conviction is rendered. We reached this conclusion because judgments of criminal conviction are in the breast of the court at the term during which they are rendered and are, therefore, subject to being vacated for good cause shown. See Conlogue v. State, 243 Ga. 141, 143-144(6), 253 S.E.2d 168 (1979), overruled on other grounds. Therefore, a trial court has no discretion to modify or vacate its judgment after the term and the only remedy after the term has ended is by habeas corpus. State v. Kight, 175 Ga.App. 65, 66(1), 332 S.E.2d 363 (1985).
Further,
the authority for withdrawal in the same term of a plea of guilty after judgment is judicial in origin, and generally refers to an attack on a plea for defects dehors the record, as where the plea was rendered through mistake or undue influence. The statutory authority for modification of a criminal judgment is OCGA § 17-9-60 et seq., which authorizes a motion in arrest of judgment. A motion in arrest of judgment, like a motion for withdrawal of plea, must be made at the *172 same term the judgment was obtained (OCGA § 17-9-61(b)), and addresses only a nonamendable defect on the face of the record. OCGA § 17-9-61(a).
(Emphasis omitted.) State v. Kight, supra, 175 Ga.App. at 66-67(1), 332 S.E.2d 363.
Consequently, as the term of court expired in which Bonner was sentenced pursuant to a guilty plea, the trial court lacked jurisdiction to allow him to withdraw the plea. Also, his motion cannot be characterized as an extraordinary motion for new trial because "[o]ne who has entered a plea of guilty cannot move for a new trial, as there was no trial." (Citation and punctuation omitted.) Davis v. State, 274 Ga. 865-866, 561 S.E.2d 119 (2002). Since the trial court had no jurisdiction to grant Bonner's motion to withdraw his guilty plea in the first instance, the trial court's actions after that action are void. Furthermore, the trial court was not authorized to treat Bonner's May 2, 2003, motion for a new trial as a petition for habeas corpus because more than 180 days had passed from the date on which Bonner's conviction became final. OCGA § 40-13-33(a); Earp v. Brown, 260 Ga. 215, 391 S.E.2d 396 (1990).
Accordingly, Bonner's conviction and sentence imposed on June 18, 2003, must be vacated and his earlier conviction reinstated. Therefore, the trial court is directed to vacate its earlier grant of Bonner's motion to withdraw his guilty plea and reinstate his initial conviction and sentence.
2. Regarding Bonner's allegation that the assistant district attorney misinformed him about the existence of the videotape of his arrest for DUI, we find that Bonner has waived the videotape argument for purposes of appeal. First, he has not enumerated the withholding of the videotape as error. Second, Bonner's counsel stated below that the missing videotape was merely an oversight and "no one's fault." And, third, Bonner's counsel also indicated that the videotape was inculpatory, stating that: "After [Bonner] saw the videotape he acquiesced to the plea in this case." Accordingly, this allegation provides no basis for appellate relief.
Judgment vacated with direction.
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