The appellant, Parker, entered a plea of guilty of burglary in the Superior Court of Peach County on March 8, 1965 and was sentenced to five years confinement which he served. He is presently confined in the U. S. Penitentiary in Atlanta, Georgia for an unrelated offense. On January 8, 1979 Parker, proceeding pro se, filed a motion to vacate his 1965 conviction in Peach County. The motion was denied as being without merit and moot. Parker appealed.
A motion to vacate is not an appropriate remedy in a criminal case. Waye v. State, 239 Ga. 871
, 874 (238 SE2d 923
) (1977). In a case similar to the one before us (although the defendant was still serving his sentence resulting from his guilty plea) the Supreme Court held that "[t]he relief possibly available from the trial court in this situation, and perhaps the only relief, would be based on an extraordinary motion for new trial. See Code Ann. 70-301, 70-303." Martin v. State, 240 Ga. 488
, 490 (241 SE2d 246
) (1978). However, such a motion is based on newly discovered evidence, but before a court authorizes such a motion, "[i]t is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of trial." Waye, supra, at 873. There is nothing alleged in Parker's motion which could not have been discovered by due diligence prior to trial, particularly in view of the fact that the record shows on its face that he was represented by counsel.
Finally, it should be pointed out that if this case were to be treated as a petition for a writ of habeas corpus, where the petitioner has been discharged from custody (as in the present case) the issue is moot. Parks v. Stynchcombe, 229 Ga. 450 (192 SE2d 335) (1972)
Willard D. Thompson, District Attorney, for appellee.