Smith v. State
322 Ga. App. 549
Ga. Ct. App.2013Background
- In Oct. 2007 Smith pleaded guilty to possession of cocaine (lesser included offense) and was sentenced to probation under OCGA § 16-13-2 (conditional discharge/first offender), six years probation.
- At the plea hearing the State and defense agreed to seek first-offender treatment; the court informed Smith that completion would result in discharge without conviction.
- Smith had prior convictions including a 1996 felony VGCSA conviction (possession with intent to distribute marijuana) that was not disclosed at the 2007 plea.
- In 2011 Smith was charged with probation violations; following a 2012 revocation hearing the court adjudicated him guilty, revoked probation, and sentenced him to 20 years (with credit for time served and prior probation time).
- Smith moved to withdraw his 2007 plea and to set aside the sentence, arguing the 2007 conditional sentence was void because (1) he was ineligible for first-offender treatment due to the 1996 VGCSA conviction and (2) the six-year probation exceeded the five-year statutory maximum.
- The trial court denied the motions; the State conceded the 20-year sentence exceeded the statutory maximum and the Court of Appeals vacated the 20-year sentence and remanded for resentencing under the correct statutory maximum.
Issues
| Issue | Smith's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the 2007 conditional discharge was void because Smith had a prior VGCSA felony making him ineligible for OCGA § 16-13-2 | Smith: 1996 VGCSA felony made him ineligible, so the 2007 sentence was void and he may withdraw the plea | State: Smith fraudulently concealed the prior conviction; having misled the court he waived relief | Held: Court found Smith knowingly defrauded the court and waived the right to challenge eligibility; relief denied |
| Whether the six-year probation in 2007 exceeded the five-year statutory maximum under OCGA § 16-13-2(c) | Smith: Six-year term exceeded the five-year cap, rendering the sentence void and allowing withdrawal of plea | State: Conditional sentence was revoked before expiration; issue rendered moot | Held: Court declined to reach final validity; issue moot because revocation and resentencing occurred |
| Whether the 20-year sentence after revocation was legal | Smith: Implied challenge to excess sentence | State: Conceded error in imposing 20 years | Held: Court agreed the 20-year sentence exceeded the statutory maximum (15 years under OCGA § 16-13-30(e)), vacated the sentence and remanded for resentencing |
Key Cases Cited
- Hallford v. State, 289 Ga. App. 350 (holding defendant may withdraw plea as of right before judgment when sentence is void)
- McFadden v. State, 243 Ga. App. 896 (defendant who conceals disqualifying conviction and thus defrauds court waives right to complain on appeal)
- Cunningham v. State, 239 Ga. App. 889 (same principle: concealment of prior conviction precludes later challenge)
- Johns v. State, 223 Ga. App. 553 (same principle: waiver where defendant misled court about prior convictions)