SURH v. StateSURH v. State
Taemin Surh appeals the denial of his motion in autrefois convict and plea of double jeopardy. We affirm, for reasons that follow.
In reviewing a trial court’s ruling on a plea in bar, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, as here, we review de novo the trial court’s application of the law to the undisputed facts.” 1 Here, the undisputed evidence shows that on March 24, 2007, Surh was arrested and charged with misdemeanor possession of marijuana, 2 two counts of aggravated assault, 3 and two counts of aggravated assault upon a police officer. 4 On December 17, 2008, he entered a negotiated nolo contendere plea to the possession of marijuana charge, agreeing to serve 12 months on probation and to pay a $500 fine, plus assessments, to submit to random drug screens in the drug court, and to waive his Fourth Amendment rights pertaining to search and seizure. 5 Surh’s plea was accepted by the chief magistrate of Glynn County, Judge Timothy L. Barton, who had been specially designated by a superior court judge of the Brunswick Judicial Circuit “to preside at the Glynn County Drug Court on . . . December 17, 2008, as a Judge of [that] [c]ourt pro hac vice.”
On January 26, 2009, the chief judge of the Superior Court for the Brunswick Judicial Circuit entered an order “withdrawing” *381 Surh’s plea. The order stated:
After a review of the [o]rder allowing Judge Barton to sit pro hac vice, it is clear that Judge Barton was presiding over Drug Court only, and that he was not permitted to consider other matters not in the normal course of a Drug Court session. Therefore, the plea entered by [Surh] is hereby withdrawn by court order, and the order of nolle prosequi entered on the additional charges of aggravated assault, two counts, and aggravated assault on a police officer, two counts, pursuant to this plea is declared null and void ab initio.
Surh subsequently filed a motion in autrefois convict and plea of former jeopardy, which the trial court denied in a detailed order, stating in relevant part:
[T]he pro hac vice order that allowed Judge Barton to preside clearly requests his assistance with matters before the Glynn County Drug Court only. . . . Judge Barton only attends to Drug Court matters on the days he presides over Drug Court unless permission has been obtained from this Court for him to assist with other specific drug cases not within the purview of the Drug Court. In this case, neither the attorney representing [Surh] nor the State received prior permission from the Court for Judge Barton to take the non-Drug Court plea, and Judge Barton was not specifically asked to render assistance with the case at issue. . . .
Soon after the entry of [Surh’s plea before Judge Barton], this [c]ourt notified [Surh’s] counsel that it would not sign the sentencing order in the case because prior permission had not been obtained from this [c]ourt for Judge Barton to hear the case, this [c]ourt did not request assistance from Judge Barton with the case, and this [c]ourt found the plea unacceptable and would have exercised its discretion to decline to take it. [Surh] was offered the opportunity to be re-sentenced or exercise his right to a jury trial. [Surh] stated he did not want to take either option and would not cho[o]se one or the other. As a result, this [c]ourt declared that the sentence was void, the plea was withdrawn, and returned the case to the active trial calendar. . . .
Here, because the judgment and sentence pronounced by Judge Barton was void, no final judgment of conviction was entered upon [Surh’s] plea of nolo contendere, no conviction within the meaning ofOCGA § 16-1-3 (4) has *382 occurred, and prosecution of [Surh’s] case is not barred by a former prosecution. Therefore, Defendant’s motion is without merit.
Surh appeals, arguing that because Judge Barton had “full authority” to accept his plea and sentence him, Surh’s plea was valid, and his subsequent prosecution by the State was barred. While we agree with Surh that Judge Barton had the authority to accept his plea, we nevertheless affirm the trial court’s denial of Surh’s motion.
Although Judge Barton verbally pronounced sentence upon Surh in accordance with the negotiated plea, the sentence was never reduced to writing. “An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is.” 9 And oral pronouncements of sentence can be increased at any time during the term before execution of the sentence has begun. 10 Here, because there is no evidence that Surh had commenced serving the probation sentence announced by Judge Barton, *383 the trial court was authorized to increase Surh’s sentence within the same term. 11
inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. 14
This case presents a unique procedural posture. Judge Barton orally pronounced Surh’s sentence, which was that agreed to by both Surh and the State during plea negotiations; Judge Barton did not, however, sign a written sentence. When the written sentence came before the superior court judge for her signature, she found the negotiated sentence unacceptable. 15 She then properly advised Surh that she intended to impose a harsher sentence and gave him the option of withdrawing his plea in lieu of resentencing. According to the judge’s order, it was only when Surh refused to select either option that the trial court set aside his plea rather than impose a sentence that was harsher than the negotiated sentence. Under these circumstances, we find no reversible error and affirm.
As a final matter, we note that the superior court appears to have mischaracterized the State’s actions with regard to the four assault charges. In her order, the chief judge of the Brunswick County Superior Court stated that “the order of nolle prosequi entered on the additional charges of aggravated assault, two counts, and aggravated assault on a police officer, two counts, pursuant to this plea is *384 declared null and void ab initio.” But the record does not contain a nolle prosequi. Instead, the State elected to list only the marijuana charge in the accusation and specifically indicated that it “ decline [d] to prosecute” the assault charges. And it is well settled that “[t]he decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor’s discretion.” 16 Thus, the only charge pending against Surh in this case is the count alleging possession of marijuana.
Judgment affirmed.
Notes
(Punctuation omitted.)
State v. Jeffries,
The State “decline[d] to prosecute” the remaining charges and dismissed them, listing only the misdemeanor possession of marijuana charge in the accusation.
(Punctuation omitted.)
Giles v. State,
(Emphasis supplied.)
The prosecutor specifically advised Judge Barton that Surh’s case was “on the calendar . . . under pleas.”
Curry v. State,
Id. See
Castillo v. State, 178
Ga. App. 312, 314 (5) (
See
Curry,
See id. at 456 (1).
(Emphasis supplied.) Id. See also Uniform Superior Court Rule 33.10.
We note that although this case is unusual in that one judge pronounced oral sentence and a separate judge was going to sign the written sentence, our analysis would be the same even if it was a single judge who pronounced verbal sentence and later decided to reject the negotiated sentence.
(Punctuation omitted.)
State v. Perry,