Opinion
38648.
DECIDED JUNE 2, 1982.
Vacate murder sentence. Dade Superior Court. Before Judge Andrews.
Paul Crane, pro se. David L. Lomenick, Jr., District Attorney, Michael J. Bowers, Attorney General, for appellee.
The direct appeal of the appellant, Paul Crane, from his 1956 conviction of murder and life sentence, was dismissed on the ground that he was a fugitive from justice. Crane v. State, 213 Ga. 386 ( 98 S.E.2d 903) (1957). His appeal from the denial of his first petition for the writ of habeas corpus was dismissed for lack of jurisdiction, "[i]t appearing from the record that there was no service of the [enumeration of errors] upon the [appellee] or his attorney, either personal or by acknowledgment ..." Crane v. Balkcom, 217 Ga. 288 ( 122 S.E.2d 82) (1961). The denial of his second petition for habeas corpus was affirmed. Crane v. Thompson, 218 Ga. 47 ( 126 S.E.2d 204) (1962). Subsequently, he filed a "motion to vacate and set aside sentence," from the denial of which he filed a notice of appeal. Held:
"The law in this jurisdiction is clear that a motion to set aside a verdict and vacate a judgment (as distinguished from a motion in arrest of judgment) is not an appropriate remedy in a criminal case." Waye v. State, 239 Ga. 871, 874 (1) ( 238 S.E.2d 923) (1977) and cits. See also Conlogue v. State, 243 Ga. 141, 143, fn. 1 ( 253 S.E.2d 168) (1979); Daniel, Ga. Criminal Trial Practice, § 28-14, p. 699 (2d Ed.). Even if we were to treat the petition as one for habeas corpus in spite of the appellant's allegation therein ("This action is not a petition for a writ of habeas corpus and is not to be construed as being such petition ..."), as we have held we can do in some cases (see Martin v. State, 240 Ga. 488 ( 241 S.E.2d 246) (1978) and cit.), this would avail the appellant nothing, as it would be a successive petition. Code Ann. § 50-127 (10) (Ga. L. 1967, pp. 835, 836; 1973, pp. 1315, 1316; 1975, pp. 1143-1145). The appellant's pleading not being a viable means of setting aside his conviction, the denial of his motion was not error.
Furthermore, even if we did not rule on the merits, the appeal would be subject to dismissal for failure of the appellant to comply with the order of this court directing the filing of briefs (which include the enumeration of errors) by May 10, 1982. Code Ann. § 24-4539; Benson v. York, 246 Ga. 751 ( 272 S.E.2d 706) (1980); Tolbert v. Tolbert, 234 Ga. 708 ( 217 S.E.2d 162) (1975); Perrin v. McDonald, 234 Ga. 239 ( 215 S.E.2d 470) (1975); Taylor v. Columbia County Planning Comm., 232 Ga. 155 ( 205 S.E.2d 287) (1974); Register v. State, 127 Ga. App. 232 ( 193 S.E.2d 58) (1972).
Judgment affirmed. All the Justices concur.