FIFTH DIVISION

PHIPPS, P. J.,

DILLARD and PETERSON, 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 8, 2016

In the Court of Appeals of Georgia

A16A1409. HANH v. THE STATE.

PHIPPS, Presiding Judge.

Jamie P. Hanh

1

appeals from the amended sentence entered after the trial court

granted his motion to vacate void sentence. Hanh contends that the trial court erred

in refusing to consider his motion to withdraw his guilty plea after finding his original

sentence to be void. Because Hanh had a statutory right to withdraw his guilty plea,

we reverse.

Hanh pled guilty to child molestation and was sentenced to 20 years’

imprisonment. Hanh subsequently filed a “Motion to Vacate Void Sentence,” arguing

that OCGA § 17-10-6.2 required the trial court to impose a split sentence that

1 Although the pleadings and appellate brief indicate that Appellant’s name is

spelled “Hahn,” his name is spelled “Hanh” on the amended sentence. The records

in his two prior appeals (A15A2339 and A15A2340, dismissed for failure to file a

timely brief) are also inconsistent in this regard.
included at least one year of probation. Hanh further contended that he was denied

effective assistance of counsel and alleged prosecutorial and judicialmisconduct with

regard to the void sentence. Hanh concluded with a request to withdraw his guilty

plea.

At a hearing on Hanh’s motion, the court declared that the sentence was void

and announced a sentence of 20 years, of which Hanh would serve 19 years in prison

and the balance on probation. Hanh then reminded the trial court that he “ha[d]

another matter,” but the trial court cut him off, concluded the hearing, and entered the

amended sentence.

Hanh appeals, complaining that the trial court did not allow him to pursue at

the hearing his claim that he was entitled to withdraw his guilty plea.

As noted above, Hanh’s “Motion to Vacate Void Sentence” included a request

to withdraw his guilty plea.

2 This issue is controlled by our decision in Kaiser v.

State,

3

 in which we approved a line of cases4 holding that “[w]here a void sentence

has been entered, it is as if no sentence has been entered at all, and the defendant

2

 See Thompson v. State, 274 Ga. 818 (559 SE2d 730) (2002).

3

 285 Ga. App. 63 (646 SE2d 84) (2007).

4

 See, e.g., Mullins v. State, 134 Ga. App. 243 (2) (214 SE2d 1) (1975).

2
stands in the same position as if he had pled guilty and not yet been sentenced. And

pursuant to OCGA § 17-7-93 (b), the defendant may withdraw his plea as of right

prior to sentencing,”5

even if the motion was filed outside the term of court in which

the original sentence was imposed.

6 Because the original sentence was a nullity7

and

Hanh filed a motion seeking to withdraw his guilty plea prior to resentencing, the trial

court erred by not allowing Hanh to withdraw his plea of guilty prior to resentencing.

8

Judgment reversed. Dillard and Peterson, JJ., concur.

5 Kaiser, supra at 66 (1). See also State v. Lewis, 298 Ga. 126, 130 n. 6 (779

SE2d 643) (2015) (“The defendant isstatutorily entitled to withdraw his or her guilty

plea ‘at any time before sentence is pronounced.’”) (citing OCGA 17-7-93 (b);

punctuation omitted). But see Simmons v. State, 315 Ga. App. 82, 84-85 (726 SE2d

573) (2012) (holding that Kaiser did not apply where the defendant had availed

himself of the First Offender Act, OCGA § 42-8-60 and thereby had not retained the

right to withdraw his guilty plea); butsee also OCGA §§ 17-10-6.2 (b) (first offender

sentencing not available as punishment for child molestation unless OCGA § 16-6-4

(b) (2) applies and the victim is at least 14 but less than 16 years of age and the

defendant is 18 years of age or younger and no more than four years older than the

victim). The record in this case indicates that Hanh was not sentenced under the First

Offender Act. 

6 Kaiser, supra at 68-69 (1).

7 See Spargo v. State, 332 Ga. App. 410 (773 SE2d 35) (2015) (vacating a void

sentence where the trial court failed to enter a split sentence for child molestation).

8 Kaiser, supra. See also Franks v. State, 323 Ga. App. 813, 814 (748 SE2d

291) (2013) (reversing the trial court’s denial of a defendant’s motion to withdraw a

guilty plea where the original sentence was void and the motion was made prior to

resentencing).

3