Amiris Herrera v. State

Court of Appeals of Georgia

Amiris Herrera v. State

DecidedJuly 27, 2022

DocketA22D0455

StatusPublished

This text of Amiris Herrera v. State (Amiris Herrera v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Amiris Herrera v. State, (Ga. Ct. App. 2022).

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Court of Appeals of the State of Georgia

ATLANTA,____________________ July 27, 2022

The Court of Appeals hereby passes the following order:

A22D0455. AMIRIS HERRERA v. THE STATE.

Amiris Herrera pleaded guilty in July 2021 to aggravated assault, simple assault, and driving without a license. In 2022, Herrera filed a pro se motion under “Rule 60” to set aside the judgment of conviction.1 The trial court denied the motion to set aside, reasoning that the relief provided by OCGA § 9-11-60, which is a provision of Georgia’s Civil Practice Act, is not available in criminal cases. Herrera then filed this application for a discretionary appeal. As explained below, however, the application must be dismissed. Herrera’s application makes clear that regardless of its nomenclature, the motion he filed in the trial court sought to set aside or vacate his criminal convictions. See State v. Bell, 274 Ga. 719, 719 (1) (559 SE2d 477) (2002) (when a court considers pleadings, substance controls over nomenclature); Sledge v. State, 312 Ga. App. 97, 98 (1) (717 SE2d 682) (2011) (“[c]ourts should examine the substance of a motion, rather than its nomenclature, to determine what sort of relief is sought”). As the Supreme Court of Georgia has made clear, however, a post-conviction motion challenging the validity of a conviction and seeking to set aside or vacate the same is not a valid procedure in a criminal case. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010); Williams v. State, 283 Ga. 94, 94 (656 SE2d 144) (2008). Thus, any effort to appeal from the denial of such a motion must be dismissed. Roberts, 286 Ga. at 532; Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786)

1 The materials included with Herrera’s application for a discretionary appeal do not include a copy of this motion. (2009). Accordingly, this application for a discretionary appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/27/2022 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.

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Court of Appeals of the State of Georgia

ATLANTA,____________________ July 27, 2022

The Court of Appeals hereby passes the following order:

A22D0455. AMIRIS HERRERA v. THE STATE.

Amiris Herrera pleaded guilty in July 2021 to aggravated assault, simple assault, and driving without a license. In 2022, Herrera filed a pro se motion under “Rule 60” to set aside the judgment of conviction.1 The trial court denied the motion to set aside, reasoning that the relief provided by OCGA § 9-11-60, which is a provision of Georgia’s Civil Practice Act, is not available in criminal cases. Herrera then filed this application for a discretionary appeal. As explained below, however, the application must be dismissed. Herrera’s application makes clear that regardless of its nomenclature, the motion he filed in the trial court sought to set aside or vacate his criminal convictions. See State v. Bell, 274 Ga. 719, 719 (1) (559 SE2d 477) (2002) (when a court considers pleadings, substance controls over nomenclature); Sledge v. State, 312 Ga. App. 97, 98 (1) (717 SE2d 682) (2011) (“[c]ourts should examine the substance of a motion, rather than its nomenclature, to determine what sort of relief is sought”). As the Supreme Court of Georgia has made clear, however, a post-conviction motion challenging the validity of a conviction and seeking to set aside or vacate the same is not a valid procedure in a criminal case. See Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010); Williams v. State, 283 Ga. 94, 94 (656 SE2d 144) (2008). Thus, any effort to appeal from the denial of such a motion must be dismissed. Roberts, 286 Ga. at 532; Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786)

1 The materials included with Herrera’s application for a discretionary appeal do not include a copy of this motion. (2009). Accordingly, this application for a discretionary appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/27/2022 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.

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Amiris Herrera v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amiris-herrera-v-state-gactapp-2022.

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