Wright v. State

596 S.E.2d 587, 277 Ga. 810, 2004 Fulton County D. Rep. 1544, 2004 Ga. LEXIS 334

• Court: Supreme Court of Georgia
• Decided: May 3, 2004
• Docket: S04A0551
• Status: Published

Opinions

Fletcher, Chief Justice.

Robert Gainous Wright filed an “extraordinary motion to modify void sentence” in order to challenge the malice murder indictment to which he pled guilty. The trial court denied the motion and he appeals. We affirm.

In 1990, Wright was indicted in Carroll County for malice murder, felony murder, armed robbery, kidnapping, and theft by taking arising out of the stabbing death of Ronald Rooks.¹ Wright pled guilty to all counts, except felony murder, which the State nol prossed. Wright was sentenced to life in prison for malice murder, a consecutive life sentence for armed robbery, a consecutive 20-year sentence for kidnapping, and a consecutive five-year sentence for theft. In 2003, Wright filed an “extraordinary motion to modify void sentence” in the Superior Court of Carroll County. He contends that his malice murder conviction is void because the indictment failed to allege venue and thus failed to allege every essential element of the crime. His motion also raises a claim of ineffectiveness of counsel. The trial court denied the motion, and Wright filed a notice of appeal in the Court of Appeals, which properly transferred the case to this Court because it involved a murder conviction.²

Wright is essentially seeking to vacate the judgment of conviction for malice murder. However, we have consistently held that a motion to vacate a judgment will not lie in a criminal case.³ OCGA § 17-9-4, which provides that “[t]he 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” is not contrary to this longstanding rule. As we have recently recognized, however, this provision does not authorize a departure from the recognized procedures for challenging a criminal conviction.⁴

Looking to the substance of Wright’s claims, we conclude that his first claim is cognizable in a motion in arrest of judgment under OCGA § 17-9-61.⁵ However, a motion in arrest of judgment must be filed within the same term of court in which the judgment was entered, and therefore, Wright’s motion is untimely.⁶

Wright’s claims are also cognizable in a habeas proceeding.⁷ Although a habeas petition would not be untimely, we cannot construe Wright’s claim as a habeas petition because it was filed in the convicting court rather than in the county in which the petitioner is incarcerated.⁸ Finally, we cannot construe the motion as an extraordinary motion for new trial since that remedy is not available to one who pled guilty.⁹

Accordingly, the trial court properly denied relief.

Judgment affirmed.

All the Justices concur.

1 The facts of the case are stated in the opinion affirming the conviction of Wright’s coindictee. Bentley v. State, 261 Ga. 229 (404 SE2d 101) (1991).

2 State v. Thornton, 253 Ga. 524 (1) (322 SE2d 711) (1984).

3 Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985); Waye v. State, 239 Ga. 871, 874 (238 SE2d 923) (1977).

4 Shields v. State, 276 Ga. 669, 671 (581 SE2d 536) (2003).

5 Conley v. State, 83 Ga. 496 (10 SE 123) (1889); Brown v. State, 181 Ga. App. 865 (354 SE2d 169) (1987).

6 OCGA § 17-9-61 (b); Lacey, 253 Ga. at 711.

7 See Hopper v. Hampton, 244 Ga. 361 (260 SE2d 73) (1979); Hicks v. Scott, 273 Ga. 358, 359 (541 SE2d 27) (2001).

8 OCGA § 9-14-43. See Davis v. State, 274 Ga. 865, 865-866 (561 SE2d 119) (2002); Lacey, 253 Ga. at 711.

9 Davis, 274 Ga. at 866.