Opinion
31605.
SUBMITTED OCTOBER 8, 1976.
DECIDED OCTOBER 26, 1976.
Motion to withdraw plea. Colquitt Superior Court. Before Judge Horkan.
Richard L. Gurley, pro se. H. Lamar Cole, District Attorney, for appellee.
Richard L. Gurley was indicted for the offense of armed robbery and rape. On January 13, 1975 he entered pleas of guilty to the offenses of robbery and aggravated assault in the Superior Court of Colquitt County on such indictment and was sentenced to imprisonment for twelve years upon the robbery charge and ten years on the aggravated assault charge, both sentences to run concurrently. On August 2, 1976, Gurley filed a pleading entitled "A Motion to Withdraw Plea." In this plea the contention is made that the guilty pleas were not constitutionally entered. The trial court entered an order denying relief and holding that the withdrawal of the guilty plea was a matter which addressed itself to the sound discretion of the trial court and that the court had no jurisdiction of a habeas corpus petition inasmuch as the prisoner was incarcerated in Tattnall County and not in Colquitt County, Georgia. The appeal is from this judgment.
The brief filed by the appellant in this court expressly disclaims that he was seeking habeas corpus relief and contends that his motion filed in the trial court was to seek to be permitted to withdraw the guilty plea. So construing the appeal in this case, it is from a judgment refusing to permit the appellant to withdraw a plea of guilty in a criminal case other than a capital felony. Accordingly, jurisdiction of this appeal is not in the Supreme Court and the case must be transferred to the Court of Appeals.
Transferred to the Court of Appeals. All the Justices concur.