On May 11, 2011, Thomas Darling pled guilty to felony murder for having failed to promptly seek medical treatment for a minor child, and was sentenced to life in prison. In November 2013, Darling filed a pro se petition for habeas corpus relief challenging the voluntariness of his plea. At an evidentiary hearing held on August 27, 2014,1 Darling’s plea counsel, among other witnesses, testified. The habeas court granted the parties 60 days to file post-hearing briefs, and on October 20, 2014, Terry J. Marlowe entered an appearance as counsel for Darling. On November 3, 2014, Marlowe filed on Darling’s behalf a motion to dismiss Darling’s pro se petition without prejudice, pursuant to OCGA #61535; 9-11-41 a 2 Except as provided in paragraph 1 of this subsection, an action shall not be dismissed upon the plaintiff’s motion except upon order of the court and upon the terms and conditions as the court deems proper. In the motion, Marlowe claimed that testimony at the evidentiary hearing revealed that plea counsel coerced Darling’s plea by misrepresenting the date at which Darling would become parole eligible. In response to this motion, the Warden relied on OCGA #61535; 9-11-41 a 1, which allows a plaintiff to voluntarily dismiss his or her case by filing a written notice of dismissal at any time before the first witness is sworn; or . . . by filing a stipulation of dismissal signed by all parties who have appeared in the action. Relying solely on OCGA #61535; 9-11-41a 1 in its order, the habeas court denied Darling’s motion, finding that witnesses had been sworn and had provided testimony at the evidentiary hearing, and that the Warden had not agreed to dismissal.
This Court granted Darling’s application for a Certificate of Probable Cause to appeal to determine whether the habeas court abused its discretion by relying on OCGA #61535; 9-11-41a 1 to deny Darling’s motion to dismiss when the motion to dismiss was made pursuant to OCGA #61535; 9-11-41a 2. For the reasons that follow, we must vacate the habeas court’s order and remand this case to the habeas court for consideration of Darling’s motion to dismiss pursuant to the terms of OCGA § 9 11 41 a 2.
