 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Allen v. State4/14/2004
91). Rather, it "applies to any challenge which could be brought by means of a petition for habeas corpus, regardless of whether the challenge was actually made by that procedure." Id. at 523, 407 S.E.2d 737. A challenge to a nolo plea may be made by petition for habeas corpus. See, e.g., Jarrett v. State, 217 Ga.App. 627, 628, 458 S.E.2d 414 (1995) (habeas corpus proceedings only available remedy to withdraw guilty plea after expiration of term); Sherwood v. State, 188 Ga.App. 295(1), 372 S.E.2d 677 (1988).
It appears to be undisputed that Allen did not attack the validity of his 1997 nolo plea within 180 days, as required by OCGA § 40-13-33(a). Under that statute and the Supreme Court of Georgia's rulings in Earp v. Brown, supra, and Brown v. Earp, supra, Allen cannot now collaterally attack the judgment of conviction entered on the nolo plea. Relying on Brown v. Earp, we reached a similar conclusion in Grant v. State, 231 Ga.App. 868, 501 S.E.2d 27 (1998). See also McLeod v. State, 251 Ga.App. 371, n. 1, 554 S.E.2d 507 (2001); Walker v. State, 199 Ga.App. 701, 702-03, 405 S.E.2d 887 (1991). As in Brown v. Earp, "[t]he challenge in this case was not by habeas corpus, but it could have been. Accordingly, it was subject to the 180-day limitation in OCGA § 40-13-33(a)." (Citation omitted.) Id. at 523, 407 S.E.2d 737. And as in Grant, the trial court was authorized to consider the 1997 misdemeanor conviction for sentencing purposes.
The dissent argues that Grant, Walker, and McLeod must be overruled. But those cases are controlled by Earp v. Brown, supra, and Brown v. Earp, supra. We are, of course, bound by those Supreme Court cases as well as the legislative pronouncement embodied at OCGA § 40-13-33(a). We find no basis for overruling any cases.
*89 We also do not agree with the dissent's argument that Grant is in conflict with **836 Donaldson v. State, 244 Ga.App. 89, 534 S.E.2d 839 (2000), and Carswell v. State, 263 Ga.App. 833, 589 S.E.2d 605 (2003). Donaldson is readily distinguished from this case, as the prior conviction improperly considered in aggravation of sentence was not one for a misdemeanor traffic offense but instead was a conviction entered on a guilty plea to possession of cocaine. Id. at 91-92(5), 534 S.E.2d 839. And as for Carswell, the opinion in that case does not indicate the nature of the plea improperly used in aggravation of sentence. See id. at 833-834(1), 589 S.E.2d 605. That case is not controlling.
Judgment affirmed.
Page 1 2 3 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|