Ralph Scott Clemons v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 16, 2019

The Court of Appeals hereby passes the following order: A19A1430. CLEMONS v. THE STATE.

In an unpublished opinion, this Court previously vacated Appellant Ralph S. Clemons’ sentence following his guilty plea on two counts of incest and two counts of child molestation and remanded for resentencing so that Clemons’ could be sentenced in accordance with the split sentence requirement set out in OCGA § 17- 10-6.2 (b). Clemons v. State, ___ Ga. App. ___ (Case No. A18A0900, decided September 28, 2018). Following remittitur to the trial court, Clemons moved to withdraw his plea, arguing that his previous sentence was void and he therefore had a right to withdraw his plea anytime before resentencing. The trial court pronounced Clemons’ new sentence without ruling on his motion to withdraw, and Clemons filed his notice of appeal to this Court, arguing that he was entitled to withdraw his plea as a matter of right prior to the pronouncement of his new sentence. The State has now moved to remand so that the trial court can rule on Clemons’ motion to withdraw. We agree that his case must be remanded for a ruling on Clemons’ motion. As we have previously explained, because Clemons’ original sentence was void, he stood in the position of having pleaded guilty but not sentenced, and thus had the right to withdraw his guilty plea prior to resentencing. Hanh v. State, 338 Ga. App. 498, 498-99 (790 SE2d 282) (2016); Royals v. State, 327 Ga. App. 337, 339 (2) (761 SE2d 357) (2014); Franks v. State, 323 Ga. App. 813, 813-14 (748 SE2d 291) (2013); OCGA § 17-7-93 (b); cf. Troutman v. State, 348 Ga. App. 375, 375-76 (823 SE2d 66) (2019) (noting distinction in our precedent based on whether entire or part of sentence declared void). Accordingly, the trial court should have ruled on Clemons’ pending motion to withdraw his plea prior to

resentencing, and the trial court’s resentencing order must be vacated and this case be remanded for further proceedings consistent with this order.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/16/2019 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.