Harper v. State

686 S.E.2d 786, 286 Ga. 216, 2009 Fulton County D. Rep. 3645, 2009 Ga. LEXIS 740

• Court: Supreme Court of Georgia
• Decided: November 23, 2009
• Docket: S09A1019
• Status: Published

Opinions

Thompson, Justice.

Appellant Richard James Harper was convicted of murder in the DeKalb County Superior Court in 1982. His conviction was affirmed on appeal. Harper v. State, 251 Ga. 183 (304 SE2d 693) (1983). In May 2008 Harper filed a motion to vacate void judgment, claiming the DeKalb County trial court lacked jurisdiction to hear his case and its judgment was void. Harper’s motion was denied on the merits and he appealed. We dismiss Harper’s appeal and hold that a motion to vacate a conviction is not an appropriate remedy in a criminal case, thereby overruling Division 2 of Chester v. State, 284 Ga. 162 (664 ) (2008).

1. At the time Harper filed his motion to vacate, and prior to this Court’s recent decision in Chester, the law in this state was that a petition to vacate or modify a judgment of conviction was not an appropriate remedy in a criminal case. Williams v. State, 283 Ga. 94 (656 SE2d 144) (2008); Wright v. State, 277 Ga. 810, 811 (596 SE2d 587) (2004); Shields v. State, 276 Ga. 669, 671 (581 SE2d 536) (2003); Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985); Crane v. State, 249 Ga. 501 (292 SE2d 67) (1982); Waye v. State, 239 Ga. 871, 874 (238 SE2d 923) (1977); Waits v. State, 204 Ga. 295 (10) (49 SE2d 492) (1948); Claughton v. State, 179 Ga. 157 (1) (175 SE 470) (1934); Gravitt v. State, 165 Ga. 779 (3) (142 SE 100) (1928); Hughes v. State, 159 Ga. 818 (5) (127 SE 109) (1925); McDonald v. State, 126 Ga. 536 (55 SE 235) (1906). In order to challenge a conviction after it had been affirmed on direct appeal, criminal defendants were required to file an extraordinary motion for new trial, OCGA § 5-5-41, a motion in arrest of judgment, OCGA § 17-9-61, or a petition for habeas corpus. OCGA § 9-14-40. A majority of this Court ruled otherwise in Chester, holding that OCGA § 17-9-4 allows criminal defendants to challenge their convictions at any time by filing any motion or pleading alleging their conviction is void.¹

This case and the many cases filed in the year since Chester was decided, however, have exposed the deficiencies of that opinion, and we find it was wrongly decided. Its ruling, creating a new post-appeal procedure for challenging a criminal conviction, marked an improvident departure from more than a century of precedent, significantly undermined the finality of criminal judgments, and has proved unworkable inasmuch as Georgia law is silent as to the procedural framework and rules applicable to this newly created remedy. Unlike the myriad rules governing previously recognized and statutorily created procedures for challenging a criminal conviction, there are no rules or precedents guiding individuals in the filing of, or courts in their consideration of, post-appeal motions to vacate a criminal conviction.

While “ft|he rule of stare decisis is a wholesome one, [it] should not be used to sanctify and perpetuate error. . . . Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes.” City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 732-733 (13 SE 252) (1891). See Garza v. State, 284 Ga. 696, 703 (670 SE2d 73) (2008) (overruling three decades of precedent requiring only slight movement under kidnapping statute); Humthlett v. Reeves, 211 Ga. 210, 215 (1) (b) (85 SE2d 25) (1954) (stare decisis not applicable where decision so recently rendered and in such direct conflict with precedent that “no one could have been led to rely upon it as permanently fixing the law and been misled by it to his hurt and injury”). Accordingly, Division 2 of Chester is overruled and the law of criminal appellate procedure restored to its pre-Chester state, whereby a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.

2. Applying the correct law to the case at hand, we hold Harper was not entitled to file a motion to vacate his criminal conviction and his appeal is subject to dismissal. See Foster v. Bowen, 253 Ga. 33 (315 SE2d 656) (1984).

Appeal dismissed.

All the Justices concur, except Hunstein, C. J., Benham and Melton, JJ., who dissent.

1 Division 1 of Chester held “[t]he denial of a petition to correct a sentence on the ground that the original sentence was void is appealable as a matter of right.” (Emphasis supplied.) Williams v. State, 271 Ga. 686, 689 (1) (523 SE2d 857) (1999). In contrast to Chester’s Division 2, that holding was supported by a long line of this Court’s precedents. See Williams, 271 Ga. at 688, n. 6. Those decisions are not, however, based upon OCGA § 17-9-4, which indeed is never mentioned in Williams. Rather, “[t]he theory of these cases [is] that a sentencing court retains jurisdiction to correct a void sentence at any time.” 271 Ga. 688-689. In other words, we have a long line of precedent recognizing a remedy in the sentencing court within which the right to challenge a void sentence may be asserted. As our precedents before Chester made equally clear, the only remedy for asserting the right to challenge a judgment of conviction as void under OCGA § 17-9-4 is one of the three statutory procedures just listed.