Ray motion in Georgia

2013And because the remittitur following his first appeal issued in 2008, the 120-day post-remittitur period had also long since run when Ray filed the motion.1 Thus, Ray’s motion to modify his sentence was not timely filed. 1 Although the remittitur following Ray’s second appeal issued much later, that remittitur “does not extend the time for filing a motion to modify his sentence because the [2012] appeal did not involve the affirmance of the judgment of his conviction as required by OCGA § 17-10-1 (f).” Rooney v. State, 318 Ga. App. 385, 386 ( 734 SE2d 104 ) (2012).

2013And because the remittitur following his first appeal issued in 2008, the 120-day post-remittitur period had also long since run when Ray filed the motion.1 Thus, Ray’s motion to modify his sentence was not timely filed. 1 Although the remittitur following Ray’s second appeal issued much later, that remittitur “does not extend the time for filing a motion to modify his sentence because the [2012] appeal did not involve the affirmance of the judgment of his conviction as required by OCGA § 17-10-1 (f).” Rooney v. State, 318 Ga. App. 385, 386 ( 734 SE2d 104 ) (2012).

2021As noted above, “the trial court is the final arbiter of all factual issues raised by the evidence,”10 and we will accept these determinations unless they are clearly 7 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984). 8 Muff v. State, 210 Ga. App. 309, 311 ( 436 SE2d 47 ) (1993) (punctuation omitted). 9 Pruitt v. State, 323 Ga. App. 689, 690 (2) ( 747 SE2d 694 ) (2013) (punctuation omitted). 10 Bailey, 313 Ga. App. at 825. 5 erroneous.11 Although Ray argues the State made a plea offer of 60 years with 30 to serve to her counsel, the assistant district attorney stated that she did not rememb

2021As noted above, “the trial court is the final arbiter of all factual issues raised by the evidence,”10 and we will accept these determinations unless they are clearly 7 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984). 8 Muff v. State, 210 Ga. App. 309, 311 ( 436 SE2d 47 ) (1993) (punctuation omitted). 9 Pruitt v. State, 323 Ga. App. 689, 690 (2) ( 747 SE2d 694 ) (2013) (punctuation omitted). 10 Bailey, 313 Ga. App. at 825. 5 erroneous.11 Although Ray argues the State made a plea offer of 60 years with 30 to serve to her counsel, the assistant district attorney stated that she did not rememb

2021As noted above, “the trial court is the final arbiter of all factual issues raised by the evidence,”10 and we will accept these determinations unless they are clearly 7 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984). 8 Muff v. State, 210 Ga. App. 309, 311 ( 436 SE2d 47 ) (1993) (punctuation omitted). 9 Pruitt v. State, 323 Ga. App. 689, 690 (2) ( 747 SE2d 694 ) (2013) (punctuation omitted). 10 Bailey, 313 Ga. App. at 825. 5 erroneous.11 Although Ray argues the State made a plea offer of 60 years with 30 to serve to her counsel, the assistant district attorney stated that she did not rememb

2021As noted above, “the trial court is the final arbiter of all factual issues raised by the evidence,”10 and we will accept these determinations unless they are clearly 7 466 U. S. 668 ( 104 SCt 2052 , 80 LE2d 674) (1984). 8 Muff v. State, 210 Ga. App. 309, 311 ( 436 SE2d 47 ) (1993) (punctuation omitted). 9 Pruitt v. State, 323 Ga. App. 689, 690 (2) ( 747 SE2d 694 ) (2013) (punctuation omitted). 10 Bailey, 313 Ga. App. at 825. 5 erroneous.11 Although Ray argues the State made a plea offer of 60 years with 30 to serve to her counsel, the assistant district attorney stated that she did not rememb

2021Consequently, as there was never a plea offered by the State, Ray’s counsel was not deficient in recommending that she enter a non-negotiated plea for the trial court’s consideration.12 Additionally, as Ray must prevail on both prongs of the Strickland analysis, her failure to establish that her plea counsel was deficient means we need 11 Evelyn, 347 Ga. App. at 371 . 12 See Kimbrough v. State, 215 Ga. App. 303, 305 (5) ( 450 SE2d 457 ) (1994). 6 not take this analysis further.13 For these reasons, the trial court did not abuse its discretion in denying Ray’s motion to withdraw based on ineffe

2021Consequently, as there was never a plea offered by the State, Ray’s counsel was not deficient in recommending that she enter a non-negotiated plea for the trial court’s consideration.12 Additionally, as Ray must prevail on both prongs of the Strickland analysis, her failure to establish that her plea counsel was deficient means we need 11 Evelyn, 347 Ga. App. at 371 . 12 See Kimbrough v. State, 215 Ga. App. 303, 305 (5) ( 450 SE2d 457 ) (1994). 6 not take this analysis further.13 For these reasons, the trial court did not abuse its discretion in denying Ray’s motion to withdraw based on ineffe

2018See von Thomas, 293 Ga. at 572-575 (2) (claims regarding the imposition of a recidivist sentence that can be waived, including claims that a prior conviction was invalid because it was entered upon a guilty plea that was not knowing and voluntary, are not valid void-sentence claims).

2018See Higgenbottom v. State , 288 Ga. 429 , 431, 704 S.E.2d 786 (2011) (limited findings made by the trial court with respect to Barker-Wingo balancing test insufficient for proper appellate review); Thomas v. State , 331 Ga.App. 641 , 662 (8) (b) (ii) 771 S.E.2d 255 (2015) (noting that the trial court "did not break down the overall pretrial delay into relevant time periods and assign responsibility for delay to each time period"); Leopold v. State , 324 Ga.App. 550 , 557-558 (2), 751 S.E.2d 184 (2013) ("It is imperative ... that in cases implicating a defendant's constitutional right to speedy

2018See Higgenbottom v. State , 288 Ga. 429 , 431, 704 S.E.2d 786 (2011) (limited findings made by the trial court with respect to Barker-Wingo balancing test insufficient for proper appellate review); Thomas v. State , 331 Ga.App. 641 , 662 (8) (b) (ii) 771 S.E.2d 255 (2015) (noting that the trial court "did not break down the overall pretrial delay into relevant time periods and assign responsibility for delay to each time period"); Leopold v. State , 324 Ga.App. 550 , 557-558 (2), 751 S.E.2d 184 (2013) ("It is imperative ... that in cases implicating a defendant's constitutional right to speedy

2018See Higgenbottom v. State , 288 Ga. 429 , 431, 704 S.E.2d 786 (2011) (limited findings made by the trial court with respect to Barker-Wingo balancing test insufficient for proper appellate review); Thomas v. State , 331 Ga.App. 641 , 662 (8) (b) (ii) 771 S.E.2d 255 (2015) (noting that the trial court "did not break down the overall pretrial delay into relevant time periods and assign responsibility for delay to each time period"); Leopold v. State , 324 Ga.App. 550 , 557-558 (2), 751 S.E.2d 184 (2013) ("It is imperative ... that in cases implicating a defendant's constitutional right to speedy

2018See Higgenbottom v. State , 288 Ga. 429 , 431, 704 S.E.2d 786 (2011) (limited findings made by the trial court with respect to Barker-Wingo balancing test insufficient for proper appellate review); Thomas v. State , 331 Ga.App. 641 , 662 (8) (b) (ii) 771 S.E.2d 255 (2015) (noting that the trial court "did not break down the overall pretrial delay into relevant time periods and assign responsibility for delay to each time period"); Leopold v. State , 324 Ga.App. 550 , 557-558 (2), 751 S.E.2d 184 (2013) ("It is imperative ... that in cases implicating a defendant's constitutional right to speedy

2018In Cook v. State , 338 Ga.App. 489 , 491 (1), 790 S.E.2d 283 (2016), however, we reaffirmed the principal that when a victim "is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in the constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant." The court's constructive force instruction was proper, undermining Ray's claim that counsel should have objected to it.

2018In Cook v. State , 338 Ga.App. 489 , 491 (1), 790 S.E.2d 283 (2016), however, we reaffirmed the principal that when a victim "is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in the constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant." The court's constructive force instruction was proper, undermining Ray's claim that counsel should have objected to it.

2018See id. at 492-493 , 790 S.E.2d 283 (2); see also Currier v. State , 294 Ga. 392 , 397 (2), 754 S.E.2d 17 (2014) ("Since the jury instructions were not erroneous, counsel was not deficient for failing to make an objection that lacked merit."). (c) The victim's aunt, who initially reported the victim's outcry, died before trial.

2018See id. at 492-493 , 790 S.E.2d 283 (2); see also Currier v. State , 294 Ga. 392 , 397 (2), 754 S.E.2d 17 (2014) ("Since the jury instructions were not erroneous, counsel was not deficient for failing to make an objection that lacked merit."). (c) The victim's aunt, who initially reported the victim's outcry, died before trial.

2011See Ray v. Stewart, 287 Ga. 789 ( 700 SE2d 367 ) (2010).

2011See Ray v. Stewart, 287 Ga. 789 ( 700 SE2d 367 ) (2010).

2007See, e.g., Hudson v. State, 278 Ga. 409, 410 (1) ( 603 SE2d 242 ) (2004) (erroneous to focus on the timing of motion rather than resolving who was at fault for the failure to appeal).

2007See, e.g., Hudson v. State, 278 Ga. 409, 410 (1) ( 603 SE2d 242 ) (2004) (erroneous to focus on the timing of motion rather than resolving who was at fault for the failure to appeal).