Blackwell v. State, 44954

44954 | Ga. Ct. App. | Jan 20, 1970

Pannell, Judge.

Walter Henry Blackwell was indicted for the offense of burglary. When arraigned he pleaded guilty to the charge and the court orally announced his sentence of five years to begin after the termination of the sentence he was then serving in the Federal penitentiary, whereupon he moved to withdraw his plea of guilty and his motion was overruled and written sentence was thereafter duly entered. He filed a motion in arrest of judgment which was overruled and he appeals to this court. Held:

Code § 27-1404 provides that after the filing of a plea of guilty the prisoner may “at any time before judgment is pronounced . . . withdraw the plea of ‘guilty’, and plead ‘not guilty,’ and such former plea shall not be given in evidence against him on his trial.” This court in Clark v. State, 72 Ga. App. 603 (34 SE2d 608) held that the oral announcement by the trial judge as to what sentence would be imposed is not a pronouncement of the sentence within the contemplation of the statute, and that the prisoner could, as a matter of right, withdraw his plea of guilty after oral announcement but prior to the time the sentence was reduced to writing. Accordingly, the trial court erred in refusing to sustain the motion in arrest of the judgment of conviction and sentence and in refusing to permit the defendant to withdraw his plea of guilty.

Submitted January 8, 1970 Decided January 20, 1970. Stanford & Stanford, Ernest H. Stanford, Jr., for appellant. Eldridge W. Fleming, District Attorney, for appellee.

Judgment reversed.

Jordan, P. J., and Eberhardt, J., concur.