Court of Appeals of the State of Georgia ATLANTA,__________________ September 19, 2012 The Court of Appeals hereby passes the following order: A13D0029. LUKE CUNNINGHAM v. THE STATE.

In 2000, Luke Cunningham pled guilty to felony possession of marijuana. In 2012, he moved to vacate his conviction, arguing that it should be set aside because his attorney failed to inform him of the potential immigration consequences of his guilty plea. The trial court dismissed the motion, concluding that it was untimely whether it was construed as a motion to withdraw a guilty plea, motion in arrest of judgment, or petition for habeas corpus.1 Cunningham then filed in this Court a pleading titled “Emergences Motion Petition for Writ of Error Coram Nobis.” We interpreted the pleading as an application for discretionary appeal and docketed it accordingly.

An order denying an out-of-time motion to withdraw a guilty plea is directly appealable, as is an order denying a motion in arrest of judgment. Smith v. State, 283 Ga. 376 (659 SE2d 380) (2008); Lay v. State, 289 Ga. 210, 211 (2) (710 SE2d 141) (2011). This Court will grant an otherwise timely discretionary application if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j). Accordingly, Cunningham’s application is GRANTED. He shall have ten days from the date of this order to file a notice of appeal with the trial court, if he has not already done so. See OCGA § 5-6-35 (g). The clerk of the trial court is directed to include a copy of

Although Cunningham has not attached a copy of his motion, we conclude based on the information before us that it cannot be interpreted as a habeas corpus petition because he did not sue or serve the person having custody of him. See OCGA § 9-14-15. this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia 09/19/2012 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.