 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hammons11/1/2001
On December 12, 1991, Hammons pled guilty to vehicular homicide in the first degree. A sentence review panel affirmed that 15-year sentence. Dissatisfied with his continuing incarceration, Hammons filed unsuccessful pro se motions seeking to withdraw his guilty plea or, in the alternative, to have his sentence modified. Despite having entered a guilty plea to vehicular homicide in the first degree, a felony requiring imprisonment for not less than three years nor more than 15 years, Hammons filed a "Motion to Enter Valid Judgment" to seek a misdemeanor sentence. See OCGA § 40-6-393 (a). For the first time, Hammons argued that Count 1 of the accusation had charged him with a misdemeanor, so that when he pled guilty to Count 1, he should have received a misdemeanor sentence.
Finding itself constrained chiefly by Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995), the trial court reluctantly granted Hammons's motion. In re-sentencing Hammons, the trial court noted that after careful review of the record,
there is no doubt that all parties understood this negotiated plea and understood and accepted the sentence to be imposed. At the time of the plea, a scrivener's error was made on the Accusation. The consequences of the State's miswording of its Accusation are harsh under these circumstances, and it is distasteful to allow the Defendant to now benefit because he freely and voluntarily pled guilty to a crime which was and which he believed to be a felony punishable by fifteen years imprisonment.
The trial court then re-sentenced Hammons to 12 months in jail and payment of a $1,000 fine. In its appeal, the State argues that this case is not controlled by Smith v. Hardrick, supra. We agree, we therefore vacate and remand.
1. As a preliminary matter, we address Hammons's motion to dismiss the State's appeal on jurisdictional grounds. Hammons claims that this appeal is not authorized by OCGA § 5-7-1. We disagree. Because the order being appealed effectively sets aside a felony conviction based on legal grounds appearing on the face of the record, the order may be fairly viewed as an arrest in judgment appealable under OCGA § 5-7-1 (a) (2). See State v. Freeman, 272 Ga. 813, 814 (1) (537 SE2d 92) (2000).
2. Next, we address the merits of the State's appeal. The criminal conduct occurred on November 16, 1991, during a high speed chase when Hammons ignored a stop sign and his vehicle rammed into another car, killing the driver of the other vehicle. At the time of the fatality, Hammons was an habitual violator and was driving a vehicle after drinking alcohol. The State drafted an eight count accusation that included charging Hammons with: committing vehicular homicide in the first degree (Count 1). Count 1, however, was imperfectly phrased because it charged Hammons with committing "VEHICULAR HOMICIDE IN THE FIRST DEGREE" by unlawfully causing the death of another person by running a stop sign, and did not properly set out the statutory elements for that offense. See OCGA § 40-6-393 (a).
At the call of the case, Hammons faced a possible 15-year sentence for vehicular homicide in the first degree plus additional prison time for the other crimes. As part of a negotiated plea, in exchange for Hammons's agreement to enter a guilty plea to vehicular homicide in the first degree, the State agreed to enter a nolle prosequi on the remaining charges. See Sample v. State, 232 Ga. App. 690, 693 (2) (503 SE2d 576) (1998) (when the State uses its discretion to nolle prosequi charges pursuant to a negotiated plea, doing so does not mean the crimes were not committed). After verifying that Hammons had been advised of his rights and had discussed the charges with
Page 1 2 3 4 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|