Remedies for a Void Criminal Conviction or Sentence in Georgia

On August 8, the Georgia Court of Appeals dismissed a convicted defendant’s appeal of the denial of his “motion to vacate and set aside his convictions and sentences” as void. Nathaniel Griggs v. State, A14A1991. The court lacked jurisdiction over the appeal because Griggs’s arguments, based on double jeopardy and problems with his indictment, were “not colorable void sentence claims.” Slip op. at 1. The decision illustrates the unique nature of appeals of criminal motions to vacate.

OCGA § 17-9-4, in the criminal procedure code, provides, “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.”

A criminal defendant can move to vacate a void sentence or a void conviction pursuant to Section 17-9-4. But a defendant must challenge a conviction “in a traditionally recognized proceeding” such as “a direct appeal of the conviction; an extraordinary motion for new trial; a motion in arrest of judgment; or a petition for habeas corpus.” Nazario v. State, 293 Ga. 480, 488 (746 SE2d 109) (2013) (citation omitted). Georgia law does not allow independent, “free-standing” motions to vacate convictions. Id.

On the other hand, Georgia law does allow “free-standing” motions to vacate sentences. The Georgia Supreme Court will vacate a sentence as void where properly raised in the sentencing court through a free-standing motion to vacate, while refusing to consider such challenges to convictions. See, e.g., Bellamy v. State, S14A0542, 295 Ga. 119 (Ga. Apr. 22, 2014) (vacating sentence imposed in 1998, where Bellamy filed a motion to vacate in the sentencing court in 2013).

The Georgia Supreme Court has gone back and forth on the issue of motions to vacate convictions. In Chester v. State, a 4-3 decision, the Georgia Supreme Court considered an appeal from the denial of a motion to vacate both a sentence and the underlying conviction. 284 Ga. 162 (664 SE2d 220) (2008). The Court stated that the denial of a motion to vacate a conviction as void “is directly appealable if the convicted defendant raised in his motion allegations which would render his conviction void.” Id. at 163. Justice Thompson, concurring specially, argued that although OCGA § 17-9-4 provides a right to challenge a void conviction, it does not provide a remedy; the proper remedies were an extraordinary motion for new trial, a motion in arrest of judgment, or a petition for habeas corpus. Id. at 164-65.

In another 4-3 decision a year later, Harper v. State, 286 Ga. 216 (686 SE2d 786) (2009), the Court overruled the disputed portion of Chester. Chief Justice Sears, who voted with the majority in Chester, had since resigned and been replaced by Justice Nahmias, who joined with the Chester dissenters in overruling it. Chester, in“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.” Harper, 686 SE2d at 787. The Court in Harper dismissed the appeal, holding that the remedies for a void conviction are a direct appeal or the three statutory remedies (the same as those listed in Nazario and the Chester dissent): extraordinary motion for a new trial, motion in arrest of judgment, or petition for habeas corpus. Harper, 686 SE2d at 786 n.1. The dissenting justices, however, argued that Chester had correctly “eliminate[ed] the unnecessary distinction between a ‘sentence’ and a ‘conviction’ for purposes of allowing a challenge to a void ‘judgment’ pursuant to [OCGA § 17-9-4].” Id. at 789 (Melton, J., dissenting).

Under Harper, the distinction between a void sentence and a void conviction is important for determining the remedies potentially available to a convicted defendant. Courts are wary of attempts by defendants to “dress up” a motion to vacate a conviction as one to vacate a sentence. “[A] defendant cannot assert a claim that his conviction was unlawful in an untimely motion to vacate his sentence simply by dressing it up as a claim that his sentence was void.” Von Thomas v. State, 293 Ga. 569, 572 (748 SE2d 446) (2013). See also Jones v. State, 322 Ga. App. 269, 270 (745 SE2d 1) (2013) (dismissing appeal where, “[l]ooking to the substance of Jones’s claims, Jones’s motion challenged not his sentence, but his conviction”). Georgia courts have been required to draw lines between attacks on convictions and attacks on sentences. See, e.g., Simpson v. State, 292 Ga. 764, 765 (740 SE2d 124) (2013) (holding motion “present[ing] a claim that certain crimes merged as a matter of fact with certain other crimes” was an improper attack on convictions rather than sentences); Pierce v. State, 289 Ga. 893 (717 SE2d 202) (2011) (reversing denial of motion to vacate sentence that was void due to trial court’s failure to follow former OCGA § 17-10-32.1); Rooney v. State, 287 Ga. 1 (690 SE2d 804, 808) (2010) (considering motion to vacate sentence as unlawfully consecutive on the merits, because “‘a sentencing court retains jurisdiction to correct a void sentence at any time’”) (quoting Williams v. State, 271 Ga. 686, 689(1) (523 SE2d 857) (1999).

But it is not just remedies that depend on the sentence/conviction distinction. Jurisdiction may turn on the distinction as well, as Griggs demonstrates. In Von Thomas, the Georgia Supreme Court stated that “[t]he sentencing court … had jurisdiction of the motion [to vacate] only to the extent that von Thomas presented a cognizable claim that his sentence was void.” 293 Ga. at 569. Thus, before addressing the merits of a free-standing motion to vacate a sentence as void, a court must consider whether the motion is truly an attack on the sentence, or whether it is properly an attack on the underlying conviction. Since the grounds for vacating a sentence are somewhat limited, any such attacks must be correctly tailored. See generally id. at 572 (“Motions to vacate a void sentence generally are limited to claims that—even assuming the existence and validity of the conviction for which the sentence was imposed—the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.”).