Johnson v. State

Full title: JOHNSON v. THE STATE

Court: Court of Appeals of Georgia

Date published: Aug 31, 2006

281 Ga. App. 401 (Ga. Ct. App. 2006)

636 S.E.2d 124

Opinion

No. A06A1379.

DECIDED AUGUST 31, 2006.

Motion to void sentence. Walker Superior Court. Before Judge Wood.

David L. Johnson, pro se. Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

PHIPPS, Judge.

This is the second appearance of this case before us. In Johnson v. State,¹ we affirmed David Johnson's conviction of rape, assault, and other crimes. More than a year later, Johnson filed a motion to void his sentence. The trial court denied the motion. In this pro se appeal, Johnson argues that because the indictment against him failed to specify that the crimes of which he was convicted occurred in Walker County, his sentence is void.

1 268 Ga. App. 1 ( 601 SE2d 392) (2004).

Like the appellant in Wright v. State,² which also arose from the denial of a motion to void a sentence, Johnson "is essentially seeking to vacate [his] judgment of conviction."³ This effort fails for a number of reasons. As our Supreme Court held in Wright, a motion to vacate judgment does not lie in a criminal case.⁴ Considered as a motion to arrest judgment,⁵ Johnson's motion is untimely because it was not filed in the same term of court in which the judgment was entered;⁶ considered as an extraordinary motion for new trial,⁷ the motion fails because Johnson could have raised the issue of the defective indictment in his original motion for new trial but did not.⁸ Finally, we note that Johnson's argument is belied by the record: the indictment did allege that the crimes were committed in Walker County.

2 77 Ga. 810 ( 596 SE2d 587) (2004).

3 Id. at 811.

4 Id.

5 See OCGA § 17-9-61 (b).

6 Wright, supra.

7 See OCGA § 5-5-41 (a); but see Balkcom v. State, 227 Ga. App. 327, 330-332 ( 489 SE2d 129) (1997) (appeal from denial of extraordinary motion for new trial must comply with discretionary appeal procedures of OCGA § 5-6-35 (a) (7)).

8 See Johnson, supra; Hester v. State, 219 Ga. App. 256, 257 (1) ( 465 SE2d 288) (1995) (extraordinary motion for new trial will not be granted on basis of previously known information).

For all these reasons, we conclude that the trial court did not err when it denied Johnson's motion to void his sentence. The parties' various motions are denied.

Judgment affirmed. Ruffin, C. J., and Smith, P. J., concur.

PHIPPS, Judge.

DECIDED AUGUST 31, 2006.