                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   August 20, 2019




In the Court of Appeals of Georgia
 A19A0952. HOOD v. THE STATE.

      RICKMAN, Judge.

      Following this Court’s holding in Hood v. State, in which we held that James

William Hood’s child molestation sentence was void, he filed a motion to withdraw

his guilty plea, which the trial court denied.1 See Hood v. State, 343 Ga. App. 230,

234 (1) (807 SE2d 10) (2017). On appeal, Hood contends that the trial court erred by

denying his motion to withdraw his guilty plea. For the following reasons, we reverse.

      In April 2011, Hood entered a negotiated guilty plea to statutory rape and child

molestation. The trial court sentenced Hood to serve 20 years, 10 years incarceration

with the remainder on probation for statutory rape and 15 years probation consecutive


      1
         Hood also sought to withdraw his guilty plea to statutory rape. Hood’s
statutory rape conviction is, however, not an issue on appeal.
for child molestation. Approximately four and a half years later, Hood filed a motion

to vacate his sentence, alleging that his child molestation sentence was void because

it violated the split-sentence requirement of former OCGA § 17-10-6.2 (b).2 The trial

court denied Hood’s motion, and this Court vacated Hood’s child molestation

sentence, finding that Hood’s child molestation sentence did not comply with the split

sentence requirement of former OCGA § 17-10-6.2 (b). Hood, 343 Ga. App. at 234

(1).

       After this Court vacated Hood’s child molestation sentence, Hood filed a

motion to withdraw his guilty plea, arguing that he had a statutory right under former

OCGA § 17-7-93 (b) to withdraw his guilty plea prior to being resentenced.3 The trial

court denied Hood’s motion, finding that Hood’s plea was freely, voluntarily,

knowingly, and intelligently entered; the “negotiated plea between the State and Hood

foster[ed] both the interests of the State of Georgia and of [Hood] by allowing both

parties to avoid the uncertainty of a jury trial”; and thus, Hood waived his right to

withdraw his guilty plea.

       2
        “[A]ny person convicted of a sexual offense shall be sentenced to a split
sentence which shall include the minimum term of imprisonment specified in the
Code section applicable to the offense.” OCGA § 17-10-6.2 (b).
       3
           In the trial court, the State conceded this issue.

                                               2
      Hood contends that the trial court erred by denying his motion to withdraw his

guilty plea. Specifically, he argues that he had a statutory right pursuant to OCGA §

17-7-93 to withdraw his guilty plea prior to being resentenced. We agree.

      “If the [defendant] pleads ‘guilty,’ . . . the court shall pronounce the judgment

of the law upon the person in the same manner as if he or she had been convicted of

the offense by the verdict of a jury. At any time before judgment is pronounced, the

accused person may withdraw the plea of “guilty” and plead “not guilty.” OCGA §

17-7-93 (b). Under Georgia law,

      [a]s a rule, a defendant has an absolute right to withdraw his plea before
      sentence is pronounced. Since a void sentence is the same as no sentence
      at all, the defendant stands in the position as if he had pled guilty and
      not been sentenced, and so may withdraw his guilty plea as of right
      before resentencing, even following the expiration of the term of court
      in which the void sentence was pronounced. If [Hood’s] sentence was
      void, therefore, he had a right to withdraw his guilty plea.


(Citation and punctuation omitted.) Franks v. State, 323 Ga. App. 813, 813-814 (748

SE2d 291) (2013).

      “Because the court imposed [a] void sentence[], [Hood] stood in the position

as if he had pled guilty but not yet been sentenced, and thus had the absolute right to

withdraw his plea before resentencing.” Franks, 323 Ga. App. at 814. Accordingly,

                                          3
the trial court’s denial of Hood’s motion to withdraw his guilty plea to child

molestation prior to resentencing was erroneous. See Royals v. State, 327 Ga. App.

337, 339 (2) (761 SE2d 357) (2014); Franks, 323 Ga. App. at 814.

      Judgment reversed. Miller, P. J., and Reese, J., concur.




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