Michael Edsel Farist appeals from the dismissal of his extraordinary motion for new trial, which was filed three years after he entered a guilty plea to seven counts of theft by taking. Because the superior court lacked jurisdiction to entertain the motion, we affirm.
The Superior Court of Gwinnett County accepted Farist’s negotiated guilty plea on June 3, 1996. The court imposed an aggregate sentence of fifty years: six years in prison on Counts 1 and 2, to be served concurrently, ten years probation on Counts 3-6, and four years probation on Count 7, to be served consecutively. As a special condition of probation, Farist was ordered to pay $934,425.26 in restitution to the victim. Subsequently, the court became concerned about the amount of funds available for restitution. After a hearing on June 27, the court vacated Farist’s sentence and ordered the state to conduct a presentence investigation. On December 10, 1996, the court resentenced Farist, increasing his sentence on Counts 1, 2, and 7 to ten years.
Farist subsequently applied for a writ of habeas corpus in the Superior Court of Butts County, challenging the trial court’s authority to increase his sentence. During the hearing held on the application on May 15, 1998, defense counsel requested that the habeas court vacate the increased sentence and reimpose the original sentence. The court granted the requested relief. No appeal was taken from this proceeding. Instead, on September 15, 1999, Farist filed an extraordinary motion for new trial in the Gwinnett court, claiming that trial counsel and habeas counsel rendered ineffective assistance and that his sentence was void. The court dismissed the motion.
1. Enumerations one, two, and five challenge the trial court’s dismissal of Farist’s extraordinary motion for new trial without hearing evidence on various claims. There was no error. “One who has entered a plea of guilty cannot move for a new trial, as there was no trial.”
Downs v. State,
2. Farist’s third enumeration of error alleges that the statute of limitation barred Counts 1-4 of the accusation. “[A] knowing and voluntary plea of guilty acts as a waiver of all defenses, known or unknown.”
Sample v. State,
3. We construe Farist’s fourth enumeration of error as attacking the validity of his sentence. Farist is correct that a superior court retains jurisdiction to correct a void sentence even after the expiration of the term of court in which the judgment of conviction is rendered.
Battle v. State,
As Farist had already begun serving his sentence in December 1996, the trial court was not authorized to increase it.
Wright v. State,
4. Farist’s sixth enumeration of error claims habeas counsel rendered ineffective assistance. However, the Sixth Amendment right to counsel does not attach to habeas corpus proceedings.
Gibson v. Turpin,
Judgment affirmed.