State v. Stinson

HUNSTEIN, Justice,

dissenting.

I believe that the Court of Appeals correctly ruled that the trial court did not comply with OCGA § 17-7-93 (b). Accordingly, I dissent to the majority’s reversal of the Court of Appeals’ judgment.

It is undisputed that OCGA § 17-7-93 (b) provides in relevant part that an accused person may withdraw a plea of guilty and plead not guilty “[a]t any time before judgment is pronounced.” (Emphasis supplied.) The trial court in Stinson’s case never entered a sentence of any kind, not even an oral pronouncement of sentence. See Coleman v. State, 256 Ga. 77 (1) (343 SE2d 695) (1986); State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). Thus, I agree with the Court of Appeals that “in the absence of any such sentence, we have no choice but to find that Stinson retained the ability, as a matter of right, to withdraw his guilty plea.”

The majority ignores the statutory mandate of OCGA § 17-7-93 (b). In doing so it relies exclusively upon Davenport v. State, 136 Ga. *382App. 913 (222 SE2d 644) (1975), as authority for its holding that the trial court correctly ruled that Stinson could not withdraw his guilty plea as a matter of right. That reliance, however, is misplaced. Davenport did not involve the withdrawal of a guilty plea under OCGA § 17-7-93 (b) and nothing therein supports the majority’s holding that the mandatory language of the statute must yield in drug court cases. The majority focuses on the rehabilitative intent of the drug court program embodied in OCGA § 16-13-2 and Stinson’s flagrant abuse of the program to conclude that a participant should not be allowed to withdraw a pre-sentence guilty plea as a matter of right. While I agree that it is regrettable that some participants of that program may elect to take advantage of the rehabilitative option afforded to them, I do not find that the potential for or actual existence of abuse authorizes this Court to ignore the plain and unambiguous language of OCGA§ 17-7-93 (b). That Stinson’s actions fly in the face of the rehabilitative tenets of OCGA § 16-13-2 (a) is without question. However, had the General Assembly desired to qualify the freedom to withdraw a guilty plea after unsuccessful participation in a drug court program, it could have so provided. It is for the General Assembly, not this Court to determine whether drug court program participants should be exempted from OCGA § 17-7-93 (b) should the courts become inundated with participants choosing to forgo the OCGA § 16-13-2 (a) sentencing option by failing to complete the rehabilitative alternative.

Decided September 13, 2004. Stephen D. Kelley, District Attorney, Leslie K DeVooght, Jacquelyn L. Johnson, Assistant District Attorneys, for appellant. Robert L. Crowe, for appellee.

Where statutory language is plain and unambiguous, we cannot rely on superfluous dicta in an inapplicable case to rewrite a statute we are obligated to apply. Accordingly, inasmuch as OCGA § 17-7-93 (b) provides the unqualified right to withdraw a guilty plea until pronouncement of judgment by the trial court, I dissent.