The State appeals the order of the trial court granting the motion for reconsideration of appellee Anthony Joseph James. The trial court’s order allowed James to withdraw his plea of nolo contendere.
On November 25, 1992, James pled nolo contendere in the State Court of Gwinnett County to one count of harassing telephone calls. OCGA § 16-11-39 (4). He was sentenced to 12 months to be served on probation, on the condition that he not contact the alleged victims of the telephone calls. At that time, Jаmes was represented by counsel. On December 28, James, through his attorney, filed a “Motion to Withdraw Plea,” in whiсh he alleged that his plea was coerced. After a.hearing, the trial court denied the motion on December 31, 1992.
The succeeding term of the State Court of Gwinnett County began on January 4, 1993. OCGA § 15-7-40; Ga. L. 1981, pp. 3033, 3035. On January 29, 1993, James, acting pro se, filed a “Notice of Appeal” from the order denying his motion to withdraw his plea and a “Motion to Appoint Counsel for Indigent Person On Appeal.” After a hearing, the trial court granted James’s mоtion and appointed counsel.
On February 23, through his new counsel, James filed a “Motion to Reconsider Dеfendant’s Motion to Withdraw Plea and to Vacate Defendant’s Sentence.” A hearing on that motion was sеt for March 9. On that date, James filed a motion to withdraw his pending notice of appeal. After the heаring, the trial court determined that James’s plea was withdrawn, vacated his sentence, and set the case down for trial. The State timely appealed that order.
1. We note initially that notwithstanding the provisions of OCGA § 5-7-1, the State may appeal a void or illegal judgment directly.
State v. Mohamed,
2. “During the term in which they are rendered, judgments of criminal conviction are in the breast of the trial court and may, therefore, be vacated for good cause shown. [Cit.] However, after the origi
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nal term has passed, a motion to vacate and set aside the judgment is not an approрriate remedy in a criminal case. [Cits.]”
Thigpen v. State,
In this case, a motion tо withdraw the plea was filed and denied during the November term. After that motion was denied, a notice of aрpeal and request for counsel were filed in the January term. No motion was pending when the November tеrm adjourned, and no motion was carried over to the following term. James’s motion for reconsideration of the trial court’s ruling on his earlier motion to withdraw his plea was not filed until nearly two months after the beginning of the term.
James, citing no specific authority, contends that his “Motion to Appoint Counsel for Indigent Person On Appeal” and the trial court’s rule nisi on that motion held the court’s previous judgment open into the new term. By its exрress terms, James’s motion had in view the pursuit of an appeal, not further proceedings on the trial court’s earlier order. The motion to appoint counsel was filed and the rule nisi issued during pendency of James’s notice of appeal; during that time the trial court retained jurisdiction in such matters as dismissal of an aрpeal, OCGA § 5-6-48; appointment of counsel on appeal, OCGA § 17-12-61 (applicable to capitаl felonies); and preparation of the record,
Harp v. State,
An order issued
within the term
and setting the hearing оf a motion for a date beyond term has the effect of keeping the term open until the designated day as to that particular case.
State v. Bradbury,
The trial court retаins the power to modify a misdemeanor sentence under OCGA § 17-10-3 (b) and to modify a probated sentence under OCGA § 42-8-34 (g) during the period of probation. These
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Code sections provide that the judge may revoke, rescind, modify, or change such a sentence “at any time.” However, this power to modify is limited by its terms to the
sentence
itself or its conditions. See
Burns v. State,
Under the applicable law, the trial court could rescind, revoke, or modify James’s sentence of probation, but it could not go behind the sentence to readdress the merits of James’s plea. That issue having been ruled upon in the preceding term, the motion for reconsideration came too late. Since the trial court lacked jurisdiction to consider James’s motion for reconsideration, the judgment of March 11, 1993 is a nullity, and the court is directed to strike it from the record.
Judgment vacated and case remanded with direction.