Pedro Alvardo-Valle v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 16, 2019

The Court of Appeals hereby passes the following order: A20D0083. PEDRO ALVARDO-VALLE v. THE STATE.

Pedro Alvardo-Valle pled guilty to criminal attempt to commit kidnapping with bodily injury and aggravated assault in 2017. Alvardo-Valle filed a motion to withdraw his guilty plea. The trial court dismissed the motion, and Alvardo-Valle filed a timely application for discretionary review.1 Based on the trial court’s order denying Alvardo-Valle’s motion to withdraw his guilty plea, the motion was filed outside the term of court of his judgment of conviction. See Ellison v. State, 283 Ga. 461, 461 (660 SE2d 373) (2008) (noting that a motion to withdraw a guilty plea must be filed in the same term of court in which the plea was entered and a trial court lacks jurisdiction to grant an untimely motion). However, orders resolving out-of-time motions to withdraw guilty pleas have been treated by our Supreme Court as directly appealable. See id.; Smith v. State, 283 Ga. 376, 376-377 (659 SE2d 380) (2008). Thus, it appears that the trial court’s order is subject to direct appeal. We will grant an otherwise timely application for discretionary appeal if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, this application is hereby GRANTED, and Alvardo-Valle shall have ten days from the date of this order to file his notice of appeal with the trial court. If he has already filed a notice of appeal in the trial court, he need not file an additional notice. The

1 The order from which Alvardo-Valle appeals is not file-stamped, but the application nonetheless appears to be timely based on the date the order was signed.

clerk of the trial court is DIRECTED to include a copy of this order in the records transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/16/2019 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.