Smith v. the State
335 Ga. App. 639
| Ga. Ct. App. | 2016Background
- Smith pleaded guilty to aggravated assault, robbery, and theft by receiving stolen property under a non-negotiated plea.
- An out-of-time appeal was pursued after claims of ineffective assistance of counsel for failing to advise timely appeal.
- The trial court concluded the direct-appeal-record-based issues could be resolved on the existing record.
- The aggravated assault indictment alleged knocking the victim to the ground with an instrument likely to cause serious bodily injury.
- The robbery and theft by receiving counts involve a vehicle; the State concedes those two offenses are mutually exclusive.
- The court vacated the robbery and theft by receiving convictions, but affirmed the aggravated assault conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the aggravated assault count was void for failing to allege a crime | Smith argues the count is void for not charging a crime | State contends the indictment sufficiently charged aggravated assault | Indictment sufficient; notice given to charged offense |
| Whether robbery and theft by receiving convictions are mutually exclusive | Smith contends both counts cannot stand together | State concedes mutual exclusivity; plea cannot stand for both | Robbery and theft by receiving vacated; convictions and pleas are set aside |
| Whether out-of-time appeal is permissible when direct appeal exists only on the record | Smith asserts entitlement to out-of-time appeal to raise waived/pre-plea claims | State argues appeal only if record resolves issue; otherwise not permitted | Out-of-time appeal available where issues can be resolved by the record |
| Whether the plea waiver affects the validity of the aggravated assault conviction | Smith's plea did not waive all claims, including void counts | Waiver applies generally to pre-plea claims; exceptions are limited | Guilty plea on aggravated assault upheld; robbery/theft vacated; waiver did not undermine assault conviction |
Key Cases Cited
- Wright v. Hall, 281 Ga. 318 (2006) (deadly weapon use may be inferred from indictment terms)
- Addison v. State, 239 Ga. 622 (1977) (hands, fists may be deadly depending on use and circumstances)
- Menna v. New York, 423 U.S. 61 (1975) (plea does not bar independent pre-plea claims)
- Burch v. State, 293 Ga. 816 (2013) (record-based determinations govern out-of-time appeal availability)
- Reed v. State, 291 Ga. 10 (2012) (indictment may imply use of weapon or instrument causing serious injury)
- Morgan v. State, 275 Ga. 222 (2002) (hands and fists can be deadly depending on use)
- Thomas v. State, 261 Ga. 854 (1992) (mutually exclusive offenses cannot be convicted together)
- Clue v. State, 273 Ga. App. 672 (2005) (plea-based convictions may be vindicated where other counts are vacated)