State v. Green, 706 S.E.2d 720 (Ga. Ct. App. 2011). · Go Syfert
State v. Green, 706 S.E.2d 720 (Ga. Ct. App. 2011). Cases Citing This Book View Copy Cite
31 citation events (31 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (quoted) Collins v. the State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence low
a motion to vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case.
discussed Cited as authority (quoted) Deiter C. Louis v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence low
a claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.
discussed Cited as authority (rule) State v. Bryan Hutcheson
Ga. Ct. App. · 2022 · confidence medium
The trial court correctly found that this sentence was void because under OCGA § 16-10-24 (b) the maximum sentence for obstruction of an officer is five years.13 However, although the sentence was void, “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”14 In the present matter, Hutcheson’s conviction for obstruction of an officer constituted a felony,15 and there was no assertion that his guilty plea was invalid or that there were grounds to reverse his conviction.16 Moreover, OCGA § 17- 13 See von Thomas v. State, 293 Ga. 569,…
discussed Cited as authority (rule) Spargo v. State (2×)
Ga. Ct. App. · 2015 · confidence medium
We are mindful that “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.” (Footnote omitted.) State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011) .
discussed Cited as authority (rule) Lonnie Paul Spargo v. State (2×)
Ga. Ct. App. · 2015 · confidence medium
A sentence is void if the court imposes punishment that the law does not allow.” (Citations and punctuation 1 We are mindful that “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.” (Footnote omitted.) State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011).
discussed Cited as authority (rule) Green v. Georgia
N.D. Ga. · 2014 · confidence medium
The Court notes that in this case the Pickens Superior Court that convicted Green ultimately endeavored to vacate the sodomy conviction as “imposing] a punishment that the law does not allow.” See State v. Green, 308 Ga.App. 33 , 706 S.E.2d 720, 721 (2011) (reversing on procedural grounds without reaching the merits of the trial court’s decision to vacate the sodomy conviction).
discussed Cited as authority (rule) Green v. Georgia
N.D. Ga. · 2013 · confidence medium
Moreover, the Pickens Superi- or Court that convicted Green ultimately endeavored to vacate the sodomy conviction as “imposfing] a punishment that the law does not allow.” See State v. Green, 308 Ga.App. 33 , 706 S.E.2d 720, 721 (2011) (reversing on procedural grounds without reaching the merits of the trial court’s decision to vacate the sodomy conviction).
discussed Cited as authority (rule) Paradise v. State
Ga. Ct. App. · 2013 · confidence medium
Aclaim challenging a conviction as void is not the same, State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011), and “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” (Citation and punctuation omitted.) Williams, 287 Ga. at 192 .
discussed Cited as authority (rule) Bobby Paradise v. State
Ga. Ct. App. · 2013 · confidence medium
A claim challenging a conviction as void is not the same, State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011), and “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” (Citation and punctuation omitted.) Williams, 287 Ga. at 192 .
discussed Cited "see" Lucious L. Johnson v. State (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011) (reversing grant of defendant’s motion to vacate conviction because motion “should have been dismissed”).
Retrieving the full opinion text from the archive…
The State
v.
Green
A10A1673.
Court of Appeals of Georgia.
Feb 22, 2011.
706 S.E.2d 720
Joe W. Hendricks, Jr., District Attorney, for appellant., Stephen R. Scarborough, for appellee.
Phipps, Miller, McFadden.
Cited by 13 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 75%
Citer courts: Court of Appeals of Georgia (2)
PHIPPS, Presiding Judge.

The state appeals from the trial court’s order vacating Charlton Green’s ten-year-old sodomy conviction. Because Green was not entitled to such relief, we reverse.

When a question of law is at issue, as here, we review the trial court’s ruling de novo and reverse if the court committed legal error. [1]

In 1997, Green pled guilty to sodomy and other offenses and was sentenced as a first offender, which sentence included probation. In January 1999, after violating the terms of his probation, Green was convicted of and sentenced for sodomy and other offenses. Green was then subject to the sexual offender registration statute. [2]

In September 1999, Green filed a “Motion to Terminate Sentence or Modify Sentence In the Alternative,” arguing that because the sodomy statute [3] had been held unconstitutional in Powell v. State, 4 the sentence for that offense should be terminated or modified to remove all conditions of probation. The trial court found Powell inapplicable and denied the motion.

In 2008, Green was charged with and convicted of failure to register as a sexual offender. [5] He appealed from that conviction, challenging the sufficiency of the evidence to support the conviction for failure to register; he argued that because substantive changes in the law had legalized the sexual conduct that formed the basis for his sodomy conviction, he was not required to register as a sexual offender. [6] We affirmed the conviction, holding that a conviction for failure to register as a sexual offender is separate from the original offense (sodomy), that at the time of the sodomy conviction, the conduct in which Green engaged was against the law, and that the evidence was sufficient to support the conviction for failure to[*34] register as a sexual offender. [7]

In September 2009, Green filed in the trial court a “Motion to Pronounce a Valid Judgment.” Therein, he sought an order vacating the underlying sodomy conviction, arguing that “it was entered in violation of his rights to due process of law and to privacy.” Green argued that the conduct underlying the sodomy conviction was protected pursuant to Lawrence v. Texas [8] and Powell [9] and that the sodomy conviction was the only offense that subjected him to the sexual registration requirement. The state opposed and moved to dismiss the motion contending, inter alia, that a motion to vacate a judgment was not an appropriate remedy in a criminal case.

The trial court granted Green’s motion and denied the state’s motion to dismiss, holding that the court was authorized to vacate the conviction because the sentence was void. According to the trial court, in punishing Green for conduct that was no longer criminal, the court had imposed a punishment that the law does not allow.

1. Regardless of the nomenclature, Green’s motion sought to vacate his criminal conviction. [10] However, because a motion to vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case, [11] Green was not authorized to seek relief from his criminal conviction pursuant to such a motion. [12] His motion should have been dismissed. [13]

Contrary to Green’s argument, the court was not authorized by Chester v. State [14] to grant the motion. The division of Chester that was not overruled by Harper v. State [15] allows a trial court to correct a void sentence at any time. [16] Green moved the trial court to vacate the conviction (which the trial court did), not to correct the sentence. A claim challenging a conviction and a claim challenging the result[*35] ing sentence as void are not the same. [17] Green’s reliance on Chester is misplaced. The trial court erred in granting the motion. [18]

Decided February 22, 2011. Joe W. Hendricks, Jr., District Attorney, for appellant. Stephen R. Scarborough, for appellee.

2. In light of our holding in Division l, [19] we need not address the state’s assertion that the conduct underlying Green’s sodomy conviction was not constitutionally protected.

Judgment reversed.

Miller, É J., and McFadden, J., concur.
1

See O’Neal v. State, 285 Ga. 361, 362 (677 SE2d 90) (2009).

4

270 Ga. 327 (510 SE2d 18) (1998) (insofar as OCGA § 16-6-2 criminalizes the performance of private, unforced, noncommercial acts of sexual intimacy between persons legally able to consent, the statute infringes upon constitutional guarantees to the right of privacy).

5

See Green v. State, 303 Ga. App. 210, 211 (692 SE2d 784) (2010).

8

539 U. S. 558, 562-564, 578 (123 SC 2472, 156 LE2d 508) (2003) (Texas statute making it a crime for two consulting adults of the same sex to engage in certain intimate sexual conduct in private residence violated the adults’ right to liberty under the due process clause).

9

Supra.

10

See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010).

11

Roberts, supra; Williams v. State, 283 Ga. 94-95 (656 SE2d 144) (2008); Brundidge v. State, 302 Ga. App. 510, 511 (2) (691 SE2d 339) (2010).

12

Harper v. State, 286 Ga. 216 (686 SE2d 786) (2009); Roberts, supra.

14

284 Ga. 162 (664 SE2d 220) (2008), overruled in part by Harper, supra, and Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010).

15

Supra.

16

Chester, supra at 162 (1); see Harper, supra at 217-218 (1) (overruling Division 2 of Chester, which had authorized a defendant to move to have a judgment of conviction declared void pursuant to OCGA § 17-9-4), and n. 1 (noting that Division 1 of Chester was correctly decided, and that the only remedy for asserting the right to challenge a judgment of conviction as void under OCGA § 17-9-4 is one of the three listed statutory procedures).

17

Williams, supra, 287 Ga. at 193; see Regent v. State, 306 Ga. App. 616 (703 SE2d 81) (2010).

19

Supra.