GA Code § 17-9-4 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 9 - Verdict and Judgment Generally|Article 1 - General Provisions|§ 17-9-4. Validity of Judgment Rendered by Court Having No Jurisdiction of Person or Subject Matter

 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.   (Orig. Code 1863, § 3513; Code 1868, § 3536; Code 1873, § 3594; Code 1882, § 3594; Civil Code 1895, § 5369; Civil Code 1910, § 5964; Code 1933, § 110-709.)   Cross references.   - Corresponding provision relating to civil procedure, § 9-12-16.   JUDICIAL DECISIONS   Jurisdiction in criminal cases extends only to matters declared criminal by law.    - In criminal cases, the jurisdiction of the court extends to such matters as the law has declared criminal, and none other. When a court undertakes to punish for an offense to which no criminality attaches, however reprehensible such offense may be in the forum of conscience, the court acts beyond the court's jurisdiction. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).    Indictment, information, or written accusation is the very groundwork of the whole superstructure of a prosecution for the commission of an offense. If such an information contains allegations of overt acts or conduct which does not constitute any crime known to the law, or undertakes to state an offense, but the facts stated do not constitute the offense, and no addition to them, however full and complete, can supply what is essential, the court is without jurisdiction to put the accused on trial. In such case, the judgment of conviction cannot be corrected, it is simply void. Imprisonment thereunder is illegal, and the accused is entitled to release in a habeas corpus proceeding, even though the accused might secure the same relief on appeal. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   Court had no jurisdiction to amend defendant's sentence two years after sentence was imposed.    - Trial court erred by denying the defendant's motion to vacate the defendant's amended sentence on drug-related charges as the trial court had no jurisdiction to amend the defendant's sentence since, at the time it was undertaken, over two years had passed since the sentence was originally pronounced; thus, under O.C.G.A. § 17-10-1(f), there was no jurisdiction to amend the sentence. Hall v. State, 291 Ga. App. 649, 662 S.E.2d 753 (2008).   No reinvested subject matter jurisdiction in trial court.    - When the sentence is not void and the defendant filed an application for review of the defendant's sentence under former O.C.G.A. § 17-10-6, as long as the sentence is one which is otherwise covered by an application, a Sentence Review Panel decision is totally insulated from a trial court's claim of reinvested subject matter jurisdiction over the question of punishment. McClendon v. State, 318 Ga. App. 676, 734 S.E.2d 505 (2012).   Allowing livestock to run at large is not criminal.    - Appellate court reversed the trial court's judgment convicting the defendants of violating O.C.G.A. § 4-3-3 by allowing livestock to roam at large because § 4-3-3 was not a penal statute and the defendants were improperly charged by use of a uniform traffic citation in violation of O.C.G.A. § 17-7-71. Cotton v. State, 263 Ga. App. 843, 589 S.E.2d 610 (2003).   Right to attack judgment as nullity not waived.    - Since the defendant did not sign a jury trial waiver, the probate court was without authority to dispose of the case. Even though there was no indication that the waiver-of-jury-trial issue was raised in the superior court, this was a matter which went to the subject matter jurisdiction of the probate court, and the right to attack the judgment as a nullity was not waived by the failure to attack the judgment before. Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554 (1990).   Motion to vacate does not lie in criminal case.    - With regard to a defendant's convictions for burglary, two counts of aggravated assault and armed robbery, aggravated sodomy and rape, and possession of a firearm by a convicted felon, the trial court did not err by denying the defendant's motion to correct a void judgment and to correct an illegally merged sentence as the defendant's motion was essentially seeking to vacate the judgment of conviction, which motion was contrary to the longstanding rule that a motion to vacate a judgment will not lie in a criminal case. Johnson v. State, 287 Ga. App. 759, 652 S.E.2d 836 (2007).    Petitioner's motion to vacate the conviction was not an appropriate remedy in a criminal case after the petitioner's murder conviction had been affirmed on direct appeal. The court overruled Division 2 of Chester v. State, 284 Ga. 162 (2008), which had allowed such motions under O.C.G.A. § 17-9-4, and held that in order to challenge a conviction after the conviction had been affirmed on direct appeal, petitioner was required to file an extraordinary motion for new trial, O.C.G.A. § 5-5-41, a motion in arrest of judgment, O.C.G.A. § 17-9-61, or a petition for habeas corpus under O.C.G.A. § 9-14-40. Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009).   Collateral attack on judgment if no law proscribes the act.    - If there is no law proscribing the act in question, or if there was a law but the law was repealed prior to the date the offense was alleged to have been committed, or if there is a law but the law is unconstitutional, these are exceptions to the general rule that a judgment of a court having jurisdiction of the type of offense and the alleged offender is not open to collateral attack. The remedy of habeas corpus is available in these exceptional cases because the court is without jurisdiction in the particular case to render the particular judgment. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   Remedy if conviction under one count valid, but void under the other.    - Habeas corpus is not an available remedy if the petitioner is a state prisoner under a valid judgment of conviction under one count of a two-count indictment even though the judgment of conviction under the other count is void. Mandamus is the only remedy available by which the petitioner can collaterally attack the void judgment of conviction under the other count and compel the Board of Pardons and Paroles to consider the petitioner's application for parole. The petition for mandamus is not premature if the petitioner is being hurt by the void judgment of conviction under the other count in that that judgment stands as a bar to petitioner's right to have the petitioner's application for parole considered. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   Erroneous judgment is not void if jurisdiction exists.    - Judgment, though the judgment may be erroneous, is not void if the court had jurisdiction of the case and the parties. Crutchfield v. State, 24 Ga. 335 (1858).   Question as to sufficiency of allegations differs from question of court's jurisdiction.    - Question as to the sufficiency of the allegations, that is, the completeness of the allegations to charge an act and intent which would constitute a crime, is a question of pleading, and is different than a question as to whether the act charged constitutes a crime, a question of the court's jurisdiction. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   Indictment failing to charge offense.    - Person who is held or convicted under an indictment which fails to charge any offense against the laws of this state may secure that person's release by habeas corpus. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   Functions of writ of error (see O.C.G.A.    §§ 5-6-49 and5-6-50) and writ of habeas corpus compared. - Function of the writ of error is to correct errors of law. The function of the writ of habeas corpus is to inquire into and determine the legality of the detention at the time of the hearing, such detention being illegal if the judgment of conviction is void. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   Habeas corpus is to correct void, not voidable judgments.    - Rule that habeas corpus is not a substitute for writ of error (see O.C.G.A. §§ 5-6-49 and5-6-50) means that habeas corpus will not lie to correct voidable judgments, that is, judgments which are merely erroneous, while habeas corpus will lie to secure a release from detention under a judgment which is utterly void. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963).   No requirement for prayer that judgment be declared void.    - This section dispensed with the necessity of a prayer that a judgment of conviction be declared void. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963); Griffis v. Griffis, 229 Ga. 587, 193 S.E.2d 620 (1972).   If judgment void, no petition, notice, service, hearing, or order.    - If an order and judgment are void and a nullity on the face of the record, no petition, notice, service, hearing, or order is necessary to set the judgment aside. It may be disregarded. Shotkin v. State, 73 Ga. App. 136, 35 S.E.2d 556 (1945), cert. denied, 329 U.S. 740, 67 S. Ct. 56, 91 L. Ed. 638 (1946).   Order properly set aside.    - Trial court was authorized to set aside a void order granting an out-of-term motion to withdraw a guilty plea beyond the term in which the order was granted. Bennett v. State, 225 Ga. App. 284, 483 S.E.2d 612 (1997), rev'd, 268 Ga. 849, 494 S.E.2d 330 (1998).   Merger claims cannot be deemed waived.    - Merger claims cannot be waived, even following a guilty plea, because a conviction that merges as a matter of law or fact with another conviction is void, and any resulting sentence is void and illegal, which means that the sentences may be challenged in any proper proceeding. Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).   Court had jurisdiction.    - Indictment alleging that the defendant committed criminal acts in Cobb County conferred jurisdiction over the defendant's person; consequently, the defendant failed to demonstrate that the defendant's sentences were void for lack of jurisdiction. Goodrum v. State, 259 Ga. App. 704, 578 S.E.2d 484 (2003).    Trial court properly denied the defendant's motion to vacate a malice murder conviction as the defendant's claim that the conviction preceded the indictment, and hence that the trial court lacked jurisdiction to hear the plea, was belied by the record. Jones v. State, 282 Ga. 568, 651 S.E.2d 728 (2007).    Trial court erred in denying the defendant's motion to hold the judgment void and reinstating the defendant's 20-year sentence for voluntary manslaughter because the defendant's application for an out-of-time sentence review was granted under O.C.G.A. § 17-10-6(a) (repealed); thus, the trial court's reinvested subject matter jurisdiction over the question of the sentencing was improper. McClendon v. State, 318 Ga. App. 676, 734 S.E.2d 505 (2012).    Cited in Berkeley v. State, 74 Ga. App. 711, 41 S.E.2d 265 (1947); Wallace v. State, 112 Ga. App. 505, 145 S.E.2d 788 (1965); Pruitt v. State, 123 Ga. App. 659, 182 S.E.2d 142 (1971); Barrett v. State, 183 Ga. App. 729, 360 S.E.2d 400 (1987); Snellings v. State, 194 Ga. App. 552, 391 S.E.2d 36 (1990); Earp v. Brown, 260 Ga. 215, 391 S.E.2d 396 (1990); State v. Mohamed, 203 Ga. App. 21, 416 S.E.2d 358 (1992); Cabell v. State, 221 Ga. App. 192, 471 S.E.2d 222 (1996); Weatherbed v. State, 271 Ga. 736, 524 S.E.2d 452 (1999); Syms v. State, 244 Ga. App. 21, 534 S.E.2d 502 (2000); Bush v. State, 273 Ga. 861, 548 S.E.2d 302 (2001); McKenzie v. State, 302 Ga. App. 538, 691 S.E.2d 352 (2010); Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017), cert. denied, No. S18C0239, 2018 Ga. LEXIS 236 (Ga. 2018).   RESEARCH REFERENCES   C.J.S.   - 49 C.J.S. (Rev), Judgments, § 22 et seq. 89 C.J.S., Trial, § 992 et seq.