This is an appeal of the trial court’s grant of Tony Lewis Right’s motion to withdraw his October 6, 1982, plea of nolo contendere to a charge of driving under the influence. Because he had a prior conviction for DUI in December 1977, the Department of Public Safety on November 29, 1982, declared Right an habitual offender and sus-' pended his license for five years. In September 1984, Right was arrested and charged with violating the Habitual Offender Act. More than two years and many terms of court after his 1982 nolo contendere plea, Right now claims that he did not understand the potential consequence of the plea that his driver’s license would be suspended. After hearing, the trial court noted that although there was evidence Right had not actually been sworn on his plea, it would rule against Right on that ground but allowed the withdrawal for the “extenuating circumstance” that if the court had had Right’s record before it and had not been under the misapprehension that the nolo plea was a good plea, Right’s plea of nolo contendere would not have been accepted. The state appeals. Held:
1. The state urges that the trial court had no authority to permit Right to withdraw his plea after the term of court when it was made, citing
Thigpen v. State,
There are several cases which hold merely that in accordance with OCGA § 17-7-93, until sentence is pronounced the accused has an absolute right to withdraw his plea, but thereafter the trial court has discretion to allow withdrawal of a plea.
McCrary v. State,
215
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Ga. 887 (
In
Overby v. State,
We think it is very confusing to speak of the withdrawal of a guilty or nolo contendere plea, after judgment is rendered, as being in the “discretion” of the trial court, for clearly the trial court has no discretion to modify or vacate its judgment after the term and, as
Conlogue
held, the only remedy after term is by habeas corpus. As to the trial court’s lack of authority to modify or vacate its judgments after the term generally, see
Union Circulation Co. v. Trust Co. Bank,
We clearly held in 1967 that “the prisoner could have made a motion to withdraw his plea of nolo contendere at any time before expiration of the term at which judgment was entered. [Cit.] However, the general rule is that after expiration of the term at which the judgment was entered a court cannot set aside or alter its final judgment unless the proceeding for that purpose was begun during the term. [Cits.]”
Moore v. State,
As to any attempt to modify a judgment, the trial court loses jurisdiction after the term. This rule applies equally to a withdrawal of a plea; otherwise, there would be no limit to time to withdraw a plea and no end to the case. Under Conlogue, supra, and Moore, supra, the trial court was without authority to permit Right’s plea to be withdrawn two years after sentence.
We should observe here that the authority for withdrawal in the same term of a plea of guilty after judgment is judicial in origin, and generally refers to an attack on a
plea
for defects dehors the record, as where the plea was rendered through mistake or undue influence.
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The statutory authority for modification of a criminal
judgment
is OCGA § 17-9-60 et seq., which authorizes a motion in arrest of judgment. A motion in arrest of judgment, like a motion for withdrawal of plea, must be made at the same term the judgment was obtained (OCGA § 17-9-61 (b)), and addresses only a nonamendable defect on the face of the record. OCGA § 17-9-61 (a). See
Marshall v. State,
2. We hold, further, that the trial court erred under the facts of this case in permitting the plea to be withdrawn merely because the appellee incorrectly estimated the collateral effects of the plea. We reject the trial court’s reasoning that it could withdraw the plea because it would not have accepted the nolo contendere plea if it had known Right had a prior DUI conviction and would be subject to having his license suspended. “Adverse unanticipated collateral consequences are not valid reasons for [permitting the withdrawal of a nolo contendere plea].
Meaton v. United States,
328 F2d 379 (5th Cir. 1964). ‘The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.’
Brady v. United States,
Judgment reversed.