FOURTH DIVISION DILLARD, P. J., RICKMAN, P. J., and BROWN, J. 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. https://www.gaappeals.us/rules DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES. January 19, 2021 In the Court of Appeals of Georgia A20A2083. JACOBO v. THE STATE. BROWN, Judge. Hector Jacobo appeals from the trial court’s order dismissing for lack of jurisdiction his extraordinary motion to withdraw guilty plea and vacate conviction. The record shows that in January 2010, Jacobo waived his right to counsel and pleaded guilty to possessing less than one ounce of marijuana. On May 5, 2020, Jacobo filed his extraordinary motion to withdraw guilty plea and vacate conviction, alleging that he was presently jailed and in “removal proceedings,” and that his guilty plea had contributed greatly to his immigration dilemma. As grounds for his motion, Jacobo asserted that nothing in the record, including the waiver of counsel form, indicated that the trial court warned him that he could suffer negative immigration consequences as a result of his guilty plea, and that, therefore, his Sixth Amendment right to counsel and his substantive and procedural due process rights under the Fourteenth Amendment were violated. Concluding that the motion was filed outside the term of court and that Jacobo had made no contention that his sentence was void, the trial court dismissed the motion for lack of jurisdiction. On appeal, Jacobo, who allegedly entered into an agreement for voluntary departure and is now living in his native Mexico, asserts that this Court should establish a new standard in situations such as his where it appears the trial court failed to “follow the rules” when taking his plea.1 He contends that the “‘void’/‘voidable’ distinction in this situation has led to a manifest injustice” and that “[a]rguing that the conviction in this case is ‘void[,]’ or merely ‘voidable’ is an exercise in sophistry.” 1 These rules are OCGA § 17-7-93 (c), and Uniform Superior Court Rule 33.8 (D) (2). OCGA § 17-7-93 (c) provides that “[i]n addition to any other inquiry by the court prior to acceptance of a plea of guilty, the court shall determine whether the defendant is freely entering the plea with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status.” USCR 33.8 (D) (2) provides that “[t]he judge should not accept a plea of guilty . . . from a defendant without first . . . [i]nforming the defendant on the record: . . . that a plea of guilty may have an impact on his or her immigration status if the defendant is not a citizen of the United States[.]” See Smith v. State, 287 Ga. 391, 403 (3) (697 SE2d 177) (2010) (explaining that pursuant to OCGA § 17-7- 93 ...
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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals