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Gholston v. State

The defendant's motion to withdraw his guilty plea to armed robbery and robbery by force was untimely.

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On January 29, 2010, Deante Gholston pled guilty to armed robbery and robbery by force, and the trial court sentenced him to two consecutive 15-year sentences, with the initial 15 years to be served in confinement and the remaining 15 years to be served on probation. On January 28, 2011, Gholston filed a pro se “Extraordinary Motion to Withdraw Guilty Plea,” contending that he should be permitted to withdraw his plea because his indictment failed to allege the essential elements of the crimes, including venue, and because the two crimes should have merged for purposes of sentencing. The trial court dismissed the motion as untimely, and Gholston now appeals the dismissal. Discerning no error, we affirm.

Gholston’s motion was untimely, whether construed as a motion to withdraw his guilty plea or as a motion in arrest of judgment. “Both sorts of motions must be filed within the same term of court at which the guilty plea or judgment being challenged was entered.” Hagan v. State, 290 Ga. 353 720 SE2d 645 2012. Gholston’s guilty plea and the resulting judgment were entered in January 2010, during the December 2009 term of court in Bibb County. See OCGA § 15-6-3 23 A. A new term of court began on Monday, February 1, 2010. See id. Hence, Gholston’s January 2011 motion was filed outside the term of court in which his plea and the resulting judgment had been entered, depriving the trial court of jurisdiction to consider it. See Hagan, 290 Ga. at 353.

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