Glean v. State

684 S.E.2d 615, 285 Ga. 822, 2009 Fulton County D. Rep. 3169, 2009 Ga. LEXIS 511

• Court: Supreme Court of Georgia
• Decided: October 5, 2009
• Docket: S09A0650
• Status: Published

Opinions

Hines, Justice.

Michael Glean appeals from an order denying his motion pursuant to OCGA § 17-9-4 to declare a judgment of conviction void. Finding that the trial court erroneously determined that it did not have jurisdiction to hear the motion, we reverse and remand the case to the trial court for further proceedings.

In 1992, Glean was convicted of the malice murder of Kimberly Wallace, after being apprehended in Ware County while piloting a small airplane that held her body. See Glean v. State, 268 Ga. 260 (486 SE2d 172) (1997). Prior to the crime, Glean, a former attorney, had represented the victim’s husband, Jack Ray Wallace in a divorce action. Id. See also Wallace v. State, 272 Ga. 501 (530 SE2d 721) (2000). The indictment charging Glean with malice murder was returned by a grand jury in Ware County, and Glean moved for a change of venue. The trial court granted the motion and transferred venue to Chatham County. A jury was selected in Chatham County, and taken back to Ware County for trial, under then Uniform Superior Court Rule (“USCR”) 19.2 (B). Glean was convicted of malice murder and sentenced to life in prison by a judge of the Superior Court of Ware County. He appealed, asserting a variety of errors, and the judgment of conviction was affirmed. See Glean, supra.

On August 19, 2008, Glean filed in the Superior Court of Ware County, a motion styled: “OCGA 17-9-4 Motion in Law & Equity to (A) Declare the ‘Judgment of Conviction’ & the ‘Judgment of Sentence’ Against Him, in the Premises, a Void, Illegal & Unenforceable ‘Nullity,’ and (B) to Grant Him Appropriate Relief.” Among other claims, Glean asserted that when the trial court granted a change of venue to Chatham County, the Superior Court of Ware County was completely deprived of jurisdiction, but that he was nonetheless convicted and sentenced by the Superior Court of Ware County. See Johnston v. State, 118 Ga. 310, 313 (45 SE 381) (1903) (“When the judge passes an order reciting that an impartial jury can not be obtained in a given county, this in contemplation of law is a conclusive judgment of the fact recited, and the court of that county loses jurisdiction as completely as if the indictment had never originated in that county.”). The trial court rejected Glean’s motion on September 2, 2008, stating that Glean’s only remedy was through a petition for a writ of habeas corpus.¹

The trial court erred in declaring that Glean’s only remedy was by writ of habeas corpus.

The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.

OCGA § 17-9-4. An assertion that a judgment is void because venue is improper is cognizable under OCGA § 17-9-4, and the denial of such a motion is directly appealable. Wallace v. State, 284 Ga. 429 (667 SE2d 590) (2008). See also Chester v. State, 284 Ga. 162, 163 (2) (664 SE2d 220) (2008). Thus, at least one of Glean’s claims was properly before the trial court in his OCGA § 17-9-4 motion and should have been addressed.² Accordingly, the judgment below is reversed, and the case is remanded to the trial court for a determination of the merits of any claims properly presented under OCGA § 17-9-4.

Judgment reversed and case remanded with direction.

All the Justices concur, except Benham, J., who dissents, and Carley, P. J., who is disqualified.

1 The trial court declared that Glean’s motion was “denied.” We note that, having mistakenly determined that it did not have jurisdiction, the logical course for the trial court, operating under that mistake, to follow was to dismiss the motion, rather than to deny it. See Smith v. State, 283 Ga. 376 (659 SE2d 381) (2008); Foskey v. State, 232 Ga. App. 303, 304 (501 SE2d 856) (1998).

2 In Glean’s direct appeal from his conviction, this Court addressed a claim that it was error to bring the Chatham County jury back to Ware County, but did so only in the context of then USCR 19.2 (B), and Glean’s failure to object to the “trial court’s erroneous rebanee on USCR 19.2 (B).” Glean, supra at 264 (2) (c). No issue of whether Glean’s conviction was void for failure of venue was ruled upon by this Court, and thus there is no decision on that question which constitutes the “law of the case.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).