GODFREY v. STATE (2026)

Harry Van Godfrey, Jr., pleaded guilty to murder and other crimes and was sentenced to life in prison. Years later, he moved to vacate his sentence as void. On October 1, 2025, a trial court granted Godfrey's motion to vacate and re-entered his judgment of conviction with a different sentence. Godfrey filed a timely notice of appeal. We now dismiss that appeal for lack of jurisdiction because under OCGA § 5-6-35(a)(5.3), a direct appeal from a guilty plea must come by discretionary application.

In 2000, Godfrey entered a negotiated guilty plea to malice murder and other crimes in connection with the stabbing death of Angela Godfrey. Under the plea agreement, Godfrey would be sentenced to life in prison plus 20 years, the State would not seek the death penalty, and Godfrey agreed “not [to] seek the benefit of parole eligibility for a period of not less than thirty-five (35) years.” Godfrey's agreement not to seek parole for 35 years was a concession: under the statute in effect at the time, he would otherwise have been eligible for parole after 14 years. See OCGA § 17-10-6.1(c)(1) (2000).

Twenty-five years later, Godfrey moved pro se to vacate his sentence as void. Relying on our decision in Humphrey v. State, 297 Ga. 349 (2015), Godfrey argued that the parole restriction in his plea agreement made his sentence illegal and void, because it “impos[ed] limitations on parole eligibility that extend beyond what is statutorily authorized.” See Humphrey, 297 Ga. at 350–51 (“a sentence that purports to limit eligibility for parole in a way that is not authorized by statutory law ․ intrudes upon the constitutional prerogative of the State Board of Pardons and Paroles to extend clemency to persons under sentence”). The trial court agreed, and so it entered a judgment that vacated the sentence from 2000 and re-sentenced Godfrey to life in prison without the possibility of parole for malice murder, followed by 20 years in prison for cruelty to children. Godfrey then filed a notice of appeal directed to the Court of Appeals, which transferred the case to this Court.

Before we may address the merits of his appeal, however, we must consider whether we have jurisdiction to decide it. See State of Ga. v. Fed. Defender Program, Inc., 315 Ga. 319, 324 (2022). As it turns out, we do not.

By statute, certain kinds of cases may be appealed only if the appellant files an “application in the nature of a petition” (we call such applications “discretionary applications”) with the appellate court. See OCGA § 5-6-35(b). This application requirement is jurisdictional: if the appellant does not file one in a case the requirement applies to, the appellate court must dismiss the appeal. See OCGA § 5-6-35(d); Burkett v. State, Case No. S26A0395, slip op. at 3–4 (May 19, 2026) (2026 WL 1391215); Gable v. State, 290 Ga. 81, 82–85 (2011).

The kinds of cases for which a discretionary application is required are listed at OCGA § 5-6-35(a), and as of May 2025, that list includes “[d]irect appeals from guilty pleas.” See OCGA § 5-6-35(a)(5.3); Ga. L. 2025 at § 1–2. That amendment was in effect when the trial court here re-entered the judgment in Godfrey's case in October 2025, so it applies to this appeal. See Murphy v. Murphy, 295 Ga. 376, 378 (2014) (the “law regarding appellate procedure in effect at the time of the judgment” governs).

And this appeal is, in fact, a “direct appeal from a guilty plea” for which OCGA § 5-6-35(a)(5.3) requires a discretionary application. The trial court's October 2025 judgment vacated the original 2000 judgment that was entered on Godfrey's guilty plea, then modified and re-entered it. The fact that the judgment was vacated, modified, and re-entered does not make it any less the judgment of conviction and sentence that resulted from Godfrey's long-ago guilty plea. Indeed, without the guilty plea, there would be no judgment of conviction to appeal. See OCGA § 16-1-3(4) (defining “conviction” as “a final judgment of conviction entered upon a verdict of finding of guilty of a crime or upon a plea of guilty”). In other words, Godfrey seeks to appeal the judgment entered on his guilty plea, which makes his appeal an appeal from a guilty plea. And that appeal is “direct” because it is an appeal by right from the final judgment, and not, for instance, an interlocutory appeal or a collateral attack on the judgment. See OCGA § 5-6-34(a)(1)(B) (providing that “Appeals may be taken to the Supreme Court and the Court of Appeals from ․ [a]ll final judgments”); Sockwell Corners, LLC v. Newton County, Case No. S26A0807, slip op. at 3 (June 2, 2026) (2026 WL 1541174) (explaining that appeals authorized under OCGA § 5-6-34(a) are those that “may be appealed directly”).

Finally, this is a direct appeal from a guilty plea even though it is an appeal from the trial court's decision to grant Godfrey's motion to vacate his sentence. Again, that decision resulted in the trial court vacating, modifying, and then re-entering its judgment based on Godfrey's guilty plea. And an appeal from that re-entered judgment is still just that — an appeal from the judgment.¹ See, e.g., Pierce v. State, 294 Ga. 842, 842–43 (2014) (considering appeal from re-entered judgment after first judgment was vacated as void on the defendant's motion); Moore v. State, 308 Ga. 556, 557 (2020) (explaining that when the trial court does not provide the statutorily required notice of a judgment to the losing party, “that party should file a motion to set aside, and the trial court should grant the motion and re-enter the judgment, whereupon the 30-day appeal period [to appeal from the judgment] would begin to run again” (cleaned up)).

In sum, by the time Godfrey's judgment on his guilty plea was re-entered, direct appeals from guilty pleas had to be taken by discretionary application. See OCGA § 5-6-35(a)(5.3). Godfrey then sought a direct appeal from the judgment entered on his guilty plea but did not file such an application. Because that requirement is jurisdictional and Godfrey did not satisfy it, we lack jurisdiction over this appeal.

Appeal dismissed.

FOOTNOTES

1.   This does not mean, however, that an appeal from an order denying a motion to vacate a sentence or withdraw a guilty plea would be a “direct appeal from a guilty plea” for which a discretionary application is required. We express no opinion about that question.

Pinson, Justice.

All the Justices concur, except Warren, P.J., not participating.