Leverette v. State
291 Ga. 834
| Ga. | 2012Background
- Leverette pled guilty in 2000 to malice murder of his wife and related offenses; sentenced to life imprisonment plus concurrent terms.
- In June 2011, Leverette moved for an out-of-time appeal, which the trial court denied after a hearing.
- The denial is reviewed for abuse of discretion; only issues resolvable by the record may be appealed from a guilty-plea judgment.
- The recusal issue involved the trial judge’s denial of a recusal motion based on potential conflict due to prior role as district attorney.
- The court addressed four main issues: recusal, plea-sentence compliance, indictment venue, and claims of counsel abandonment and timeliness of filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the recusal denial proper given the judge’s prior role? | Leverette contends the judge should have recused himself. | The judge did not meet the statutory grounds for recusal. | No abuse of discretion; no proper statutory grounds shown. |
| Did the State's plea agreement and sentencing comply with USCR 33.5/33.10? | The State failed to honor the plea agreement and the court should address under USCR 33.5/33.10. | Sentences imposed matched the plea agreement; no judicial statement required under 33.10. | The sentences complied with the plea agreement; no USCR 33.10 issue. |
| Was the indictment fatally flawed for lack of venue? | Venue was not properly stated in the indictment. | Venue was established by alleging the crime occurred in the county; street address not required. | Venue established; not fatal. |
| Did trial counsel’s alleged abandonment warrant an out-of-time appeal? | Abandonment by counsel justified an out-of-time appeal. | Direct appeals from guilty-plea judgments are not guaranteed and denied on the current record. | No abuse of discretion; record insufficient to show entitlement. |
| Was the motion to amend properly denied as untimely? | Supplemental grounds were timely filed. | Untimely filing under OCGA §5-6-40 and Rules 10/19 must be rejected. | Untimely amendments were not considered; affirmed. |
Key Cases Cited
- Brown v. State, 290 Ga. 321 (Ga. 2012) (out-of-time appeal review; record-based issues only)
- King v. State, 246 Ga. 386 (Ga. 1980) (recusal/policy of prosecutor as judge)
- Gude v. State, 289 Ga. 46 (Ga. 2011) (recusal context; former prosecutor as judge)
- Fowler v. Strickland, 243 Ga. 30 (Ga. 1979) (limits on disqualification grounds based on prior role)
- Brown v. State, 307 Ga. App. 99 (Ga. App. 2010) (recusal standards; nonautomatic disqualification)
- Lemming v. State, 292 Ga. App. 138 (Ga. App. 2008) (no error from judge’s failure to recuse from prior prosecution)