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2018 Georgia Code 17-9-4 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-9-4 Case Law from Google Scholar Amendments to OCGA 17-9-4

TITLE 17 CRIMINAL PROCEDURE

Section 9. Verdict and Judgment Generally, 17-9-1 through 17-9-63.

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).

RESEARCH REFERENCES

C.J.S.

- 49 C.J.S. (Rev), Judgments, § 22 et seq. 89 C.J.S., Trial, § 992 et seq.

Cases Citing O.C.G.A. § 17-9-4

Total Results: 20  |  Sort by: Relevance  |  Newest First

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Harper v. State, 686 S.E.2d 786 (Ga. 2009).

Cited 671 times | Published | Supreme Court of Georgia | Nov 23, 2009 | 286 Ga. 216, 2009 Fulton County D. Rep. 3645

...ts were required to file an extraordinary motion for new trial, OCGA § 5-5-41, a motion in arrest of judgment, OCGA § 17-9-61, or a petition for habeas corpus. OCGA § 9-14-40. A majority of this Court ruled otherwise in Chester, holding that OCGA § 17-9-4 allows criminal defendants to challenge their convictions at any time by filing any motion or pleading alleging their conviction is void....
...On May 14, 2008, Harper filed a "Motion to Vacate Void Judgment," in which he alleged that the judgment of conviction rendered in DeKalb County Superior Court was void because the murder for which he was convicted had actually taken place in Fulton County. See OCGA § 17-9-4 ("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.")....
...ignificantly undermined the finality of criminal judgments, and has proved unworkable." The majority, however, is incorrect. As explained more fully below, our decision in Chester was based on a straightforward analysis of the plain language of OCGA § 17-9-4—an analysis completely ignored by the majority—and was specifically designed to make our overall case law more consistent with the plain language of OCGA § 17-9-4, rather than less so, as our case law prior to Chester had been. Again, OCGA § 17-9-4 provides that "[t]he 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" (emphasis supplied)....
...ed to use that void conviction against the defendant (see id.), the majority's attempt to limit the plain language of the statute to apply only to such a scenario fails for at least two reasons. First, as the majority would have to acknowledge, OCGA § 17-9-4 has repeatedly been held to authorize a free-standing attack on a void sentence. See, e.g., Williams v. State, 271 Ga. 686(1), 523 S.E.2d 857 (1999). [3] Second, OCGA § 17-9-4 is a criminal procedure statute....
...We are not dealing here with the question whether a civil authorization to attack a judgment as void has any application in the criminal context. As explained in more detail below, the only real question is what is meant by the term "judgment" as it relates to the application of OCGA § 17-9-4. It is well settled that, consistent with the statutory language of OCGA § 17-9-4 permitting an attack on a void "judgment," a motion to vacate a void sentence is a cognizable action, and the denial of such a motion gives rise to the right of a direct appeal. See Williams, supra, 271 Ga. at 686(1), 523 S.E.2d 857 ("the denial of a petition to correct a sentence on the ground that the original sentence was void is appealable as a matter of right"). OCGA § 17-9-4 does not limit application of the term "judgment" to only criminal "sentences." Thus, it cannot be said that the statute, by its terms, precludes the viability of a motion to vacate an underlying conviction that is just as "void" as a void sentence. In Chester, this Court merely recognized that, if a void sentence can be properly attacked consistent with the plain language of OCGA § 17-9-4, and a "sentence" is merely one part of the overall judgment of conviction, a void conviction itself must also be subject to attack pursuant to OCGA § 17-9-4. A conviction in a criminal case is no less a *789 "judgment" than the sentence imposed, and OCGA § 17-9-4 makes no distinction between "sentences" and "convictions" through its use of the general term, "judgment." Thus, by its plain language, OCGA § 17-9-4 would allow an attack on a void conviction in the same manner that this Court has consistently allowed an attack on a void sentence....
...If, however, a defendant initiated a free-standing challenge, the defendant could only challenge the "sentence" portion of the judgment, and not whether the underlying conviction itself was void. Under this pre- Chester standard, the plain meaning of the general word "judgment" in OCGA § 17-9-4 had been lost, creating a world where, in one instance, a "judgment" included both the underlying conviction and the sentence, and, at other times, it included only the "sentence." [4] Chester ensured that our case law would become more consistent with the plain wording of OCGA § 17-9-4 by eliminating the unnecessary distinction between a "sentence" and a "conviction" for purposes of allowing a challenge to a void "judgment" pursuant to the statute....
...Accordingly, contrary to the majority's position that Chester was "wrongly decided" and "marked an improvident departure" from prior case law that did not allow a defendant to challenge a void conviction through a motion to vacate, this Court actually held true to the plain text of OCGA § 17-9-4 and harmonized its plain meaning with existing case law....
...erpretation originally given to it") (citation and punctuation omitted). Accordingly, because Chester was not a "wrongly decided" case as the majority contends, but, rather, the result of a simple and necessary application of the plain terms of OCGA § 17-9-4, I would follow the binding precedent of Chester and affirm the judgment below....
...State, 271 Ga. 686, 689(1), 523 S.E.2d 857 (1999). In contrast to Chester 's Division 2, that holding was supported by a long line of this Court's precedents. See Williams, 271 Ga. at 688, n. 6, 523 S.E.2d 857. Those decisions are not, however, based upon OCGA § 17-9-4, which indeed is never mentioned in Williams....
...In other words, we have a long line of precedent recognizing a remedy in the sentencing court within which the right to challenge a void sentence may be asserted. As our precedents before Chester made equally clear, 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 statutory procedures just listed....
...conviction void and are, therefore, not within the ambit of his right to a direct appeal from a motion to vacate a void judgment." (Citation omitted.) Jones v. State, 282 Ga. 568, 569(3), 651 S.E.2d 728 (2007). [3] The majority's argument that OCGA § 17-9-4 has no application to a challenge to a void sentence is unpersuasive. Indeed, as the majority correctly acknowledges, "a sentencing court retains jurisdiction to correct a void sentence at any time." Williams, supra, 271 Ga. at 689(1), 523 S.E.2d 857. OCGA § 17-9-4 supports this proposition. A void judgment "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." OCGA § 17-9-4....
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Hulett v. State, 296 Ga. 49 (Ga. 2014).

Cited 124 times | Published | Supreme Court of Georgia | Oct 20, 2014 | 766 S.E.2d 1

...(listing cases). Nevertheless, we agree with the Court of Appeals that “an accused who has been convicted of a crime has neither a vested right to nor a reasonable expectation of finality as to a pronounced sentence which is null and void.” Bryant v. State, 229 Ga. App. 534, 535 (1) (494 SE2d 353) (1997). See OCGA § 17-9-4 (“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.”...
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Nazario v. State, 293 Ga. 480 (Ga. 2013).

Cited 114 times | Published | Supreme Court of Georgia | Jul 11, 2013 | 746 S.E.2d 109, 2013 Fulton County D. Rep. 2206

...That being so, their illegality is not an issue that may be waived because ... “ ‘[a] judgment which is void for any cause is a mere nullity and it may be so held in any court where it becomes material to the interest of the parties to consider it.’ ” Curtis, 275 Ga. at 577-578 (citations omitted). See also OCGA § 17-9-4 (“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.”)....
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Spurlock v. Dep't of Human Resources, 690 S.E.2d 378 (Ga. 2010).

Cited 65 times | Published | Supreme Court of Georgia | Feb 15, 2010 | 286 Ga. 512, 2010 Fulton County D. Rep. 399

...But rulings made by a court without competent jurisdiction that affect the merits of an appeal—including, obviously, the judgment whether even to allow the appeal of a case— are nullities, whether or not they are vacated by the issuing court. See OCGA § 17-9-4 ("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.")....
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Brooks v. State, 301 Ga. 748 (Ga. 2017).

Cited 62 times | Published | Supreme Court of Georgia | Aug 14, 2017 | 804 S.E.2d 1

...See Lay, 289 Ga. at 212 (2). Brooks appears to argue that he should be allowed to withdraw his plea on the basis that his conviction that followed is void because the trial court did not have jurisdiction to allow him to withdraw his original plea. OCGA § 17-9-4 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...
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Chester v. State, 664 S.E.2d 220 (Ga. 2008).

Cited 62 times | Published | Supreme Court of Georgia | Jul 11, 2008 | 284 Ga. 162, 2008 Fulton County D. Rep. 2401

...492(3), 379 S.E.2d 199 (1989). Since the sentences imposed by the trial court are punishment the law allows, the sentences are not void. 2. We next examine Chester's motion to the extent it seeks to have judgments of conviction declared void pursuant to OCGA § 17-9-4. OCGA § 17-9-4 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 where it becomes material to the interest of the parties to consider it." To qualify for consideration as a motion filed pursuant to OCGA § 17-9-4, a motion to vacate a conviction as void must allege a ground upon which the judgment of conviction entered against a criminal defendant can be declared void....
...568, 651 S.E.2d 728 (2007) (where defendant convicted of murder alleged conviction was entered on the record prior to indictment, an allegation that could void the conviction). If the ground raised is not one which would void the conviction, the motion does not qualify as an OCGA § 17-9-4 motion....
...habeas corpus, or a motion in arrest of judgment. See Williams v. State, 283 Ga. 94, 95, n. 1, 656 S.E.2d 144 (2008). Shields v. State, 276 Ga. 669, 581 S.E.2d 536 (2003) should be read as requiring dismissal of an appeal from the denial of an OCGA § 17-9-4 motion where a convicted defendant raises *222 sufficiency of the evidence as an issue. However, where the convicted defendant raises in an OCGA § 17-9-4 motion an issue that would void a conviction (e.g., lack of venue), the denial of the motion is affirmed where venue was, in fact, proved....
...State, 165 Ga. 779(3), 142 S.E. 100 (1928); Hughes v. State, 159 Ga. 818(5), 127 S.E. 109 (1925); McDonald v. State, 126 Ga. 536, 55 S.E. 235 (1906). Without any justification, the majority opinion tacitly overrules this precedent by holding that OCGA § 17-9-4 provides criminal defendants authority to challenge their convictions at any time by filing in the trial courts of this State a motion to vacate or any other motion alleging their conviction is void. I find nothing in the language of OCGA § 17-9-4 authorizing a criminal defendant to challenge a conviction by filing a motion to vacate or establishing a separate "§ 17-9-4 motion" by which criminal defendants may raise such a challenge. Instead, I believe OCGA § 17-9-4 as properly interpreted is a statute providing a criminal defendant the right to challenge a void conviction....
...OCGA § 9-14-40. See Williams, supra, 283 Ga. at 95, n. 1, 656 S.E.2d 144. See generally OCGA § 9-2-3 ("For every right there shall be a remedy."). Unlike the majority opinion, I would follow this precedent and refuse to read into the right provided in OCGA § 17-9-4 a previously unrecognized remedy....
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Wright v. State, 596 S.E.2d 587 (Ga. 2004).

Cited 57 times | Published | Supreme Court of Georgia | May 3, 2004 | 277 Ga. 810, 2004 Fulton County D. Rep. 1544

...Court because it involved a murder conviction. [2] Wright is essentially seeking to vacate the judgment of conviction for malice murder. However, we have consistently held that a motion to vacate a judgment will not lie in a criminal case. [3] OCGA § 17-9-4, which provides that "[t]he 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" is not contrary to this long-standing rule....
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Collins v. State, 591 S.E.2d 820 (Ga. 2004).

Cited 25 times | Published | Supreme Court of Georgia | Jan 12, 2004 | 277 Ga. 586, 2004 Fulton County D. Rep. 186

...application for discretionary appeal (OCGA § 5-6-35(a)(7)); in the case of a petition for writ of habeas corpus, the criminal defendant must file an application for certificate of probable cause to appeal. OCGA § 9-14-52(b). Appellant invoked OCGA § 17-9-4 in filing his motion in the trial court and in filing his notice of appeal....
...607 (1919); Heaton v. State, 40 Ga.App. 87, 149 S.E. 62 (1929). Since appellant's post-conviction, post-appeal motion does not allege a ground upon which the judgment of conviction entered against him can be declared void, it does not qualify as a § 17-9-4 motion and does not provide a means by which a direct appeal to this Court may be obtained....
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Williams v. State, 656 S.E.2d 144 (Ga. 2008).

Cited 21 times | Published | Supreme Court of Georgia | Jan 8, 2008 | 283 Ga. 94, 2008 Fulton County D. Rep. 87

...The court denied Williams' motion and he appeals. For the following reason, we affirm. The law is clear that a motion to set aside a verdict and vacate a judgment is not an appropriate remedy in a criminal case. Wright v. State, 277 Ga. 810, 811, 596 S.E.2d 587 (2004). OCGA § 17-9-4, which provides that "[t]he 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," does not require a contrary result....
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State v. Glover, 641 S.E.2d 543 (Ga. 2007).

Cited 18 times | Published | Supreme Court of Georgia | Feb 26, 2007 | 281 Ga. 633, 2007 Fulton County D. Rep. 488

...procedure: "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." OCGA § 17-9-4....
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Staley v. State, 672 S.E.2d 615 (Ga. 2009).

Cited 8 times | Published | Supreme Court of Georgia | Jan 12, 2009 | 284 Ga. 873, 2009 Fulton County D. Rep. 155

...In 2002 appellant Edward Staley entered counseled guilty pleas to charges of aggravated child molestation, child molestation, and enticing a child for indecent purposes. Five years later, he began challenging his convictions and sentences by filing numerous motions in the sentencing court pursuant to OCGA § 17-9-4 in which he alleged, inter alia, that his convictions were void because the statutes under which he was charged and sentenced did not criminalize the conduct for which he was convicted....
...[Cit.] Under that doctrine, statutory construction belongs to the courts, legislation to the legislature." (Citation and punctuation omitted.) Etkind v. Suarez, 271 Ga. 352, 353(1), 519 S.E.2d 210 (1999). 2. We do not address appellant's remaining enumerations based on grounds not properly alleged in an OCGA § 17-9-4 motion. See Chester v. State, supra at 162(2), 664 S.E.2d 220 (OCGA § 17-9-4 authorizes motion that alleges ground upon which judgment of conviction can be declared void). "If [a] motion alleges a ground which would not void the conviction, the motion does not qualify as a § 17-9-4 motion and the trial court's ruling on the motion is not directly appealable....
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Gutierrez v. State, 290 Ga. 643 (Ga. 2012).

Cited 7 times | Published | Supreme Court of Georgia | Feb 6, 2012 | 723 S.E.2d 658, 2012 Fulton County D. Rep. 356

...r court’s authority to exercise original subject matter jurisdiction over a matter ordinarily within the jurisdiction of the juvenile court. The judgment of a court having no jurisdiction of the person or subject matter is void and a nullity, OCGA § 17-9-4, and “it is always the duty of a court to inquire into its jurisdiction.” [Cits.] In this case, the superior court correctly inquired into its jurisdiction to try juvenile [ ] [Gutierrez] after [he] raised the issue by motion. State v....
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Bankston v. State, 837 S.E.2d 788 (Ga. 2020).

Cited 5 times | Published | Supreme Court of Georgia | Jan 13, 2020 | 307 Ga. 656

...On May 13, 1988, Bankston pled guilty but mentally ill to five counts of malice murder. The other charges were nolle prossed, and he was sentenced to five consecutive life sentences. In 2019, Bankston filed a pro se motion in Clarke County to “vacate void Judgment of Conviction, OCGA § 17-9-4.” That motion sought, in substance, to vacate his convictions and to withdraw his guilty pleas....
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Wallace v. State, 667 S.E.2d 590 (Ga. 2008).

Cited 5 times | Published | Supreme Court of Georgia | Oct 6, 2008 | 284 Ga. 429, 2008 Fulton County D. Rep. 3183

...Baker, Attorney General, for appellee. BENHAM, Justice. Appellant Jack Ray Wallace was convicted of the 1990 murder of his estranged wife, and his conviction was affirmed in Wallace v. State, 272 Ga. 501, 530 S.E.2d 721 (2000). In January 2008, Wallace filed a motion pursuant to OCGA § 17-9-4 to vacate the judgment of conviction as void. The trial court denied the motion and Wallace filed a direct appeal to this Court. The denial of a motion filed pursuant to OCGA § 17-9-4 is directly appealable. Chester v. State, 284 Ga. 162(2), 664 S.E.2d 220 (2008). OCGA § 17-9-4 provides that "[t]he judgment of a court having no jurisdiction of the person or subject matter, or void *592 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 motion that alleges a ground upon which the judgment of conviction can be declared void is filed pursuant to OCGA § 17-9-4. Id., Collins v. State, 277 Ga. 586, 591 S.E.2d 820 (2004). If the motion alleges a ground which would not void the conviction, the motion does not qualify as an OCGA § 17-9-4 motion and the trial court's ruling on the motion is not directly appealable....
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Landers v. State, 679 S.E.2d 343 (Ga. 2009).

Cited 4 times | Published | Supreme Court of Georgia | Jun 1, 2009 | 285 Ga. 575, 2009 Fulton County D. Rep. 1838

...Accordingly, the denial of appellant's motion to vacate was proper and must be affirmed. Judgment affirmed. All the Justices concur. NOTES [1] Compare Chester v. State, 284 Ga. 162(2), 664 S.E.2d 220 (2008) (suggesting post-conviction motion under OCGA § 17-9-4 cognizable where based on State's failure to prove venue), with Wright v. State, 277 Ga. 810, 811, 596 S.E.2d 587 (2004) (OCGA § 17-9-4 motion not cognizable where based on failure to allege venue).
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Ball v. State, 286 Ga. 363 (Ga. 2010).

Cited 2 times | Published | Supreme Court of Georgia | Jan 25, 2010 | 688 S.E.2d 354, 2010 Fulton County D. Rep. 198

...urder and possession of a firearm during the commission of a felony. The judgment of conviction was affirmed on appeal in Brooks v. State, 281 Ga. 14 (635 SE2d 723) (2006). In 2007, appellant filed a motion to vacate a void judgment pursuant to OCGA § 17-9-4, and the trial court dismissed appellant’s motion on the ground that the incarcerated appellant had failed to appear at a hearing on the motion....
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Moreland v. State, 690 S.E.2d 150 (Ga. 2010).

Cited 1 times | Published | Supreme Court of Georgia | Jan 25, 2010 | 286 Ga. 545, 2010 Fulton County D. Rep. 185

...in which he argued that the indictment was void. Citing Williams v. State, 283 Ga. 94, 656 S.E.2d 144 (2008), which pre-dated Chester v. State, 284 Ga. 162, 664 S.E.2d 220 (2008), the trial court dismissed defendant's motions on the ground that OCGA § 17-9-4 does not authorize an attack on a criminal conviction. [1] This appeal followed. We affirm. In Harper v. State, 286 Ga. 216, 686 S.E.2d 786 (2009), this Court overruled Chester to the extent that Chester allowed OCGA § 17-9-4 to be used to challenge a void conviction....
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Glean v. State, 684 S.E.2d 615 (Ga. 2009).

Cited 1 times | Published | Supreme Court of Georgia | Oct 5, 2009 | 285 Ga. 822, 2009 Fulton County D. Rep. 3169

...Supreme Court of Georgia. October 5, 2009. Michael A. Glean, pro se. Thurbert E. Baker, Atty. Gen., Richard E. Currie, Dist. Atty., Paula K. Smith, Sr. Asst. Atty. Gen., for appellee. HINES, Justice. Michael Glean appeals from an order denying his motion pursuant to OCGA § 17-9-4 to declare a judgment of conviction void....
...Glean was convicted of malice murder and sentenced to life in prison by a judge of the Superior Court of Ware County. He appealed, asserting a variety of errors, and the judgment of conviction was affirmed. See Glean, supra. On August 19, 2008, Glean filed in the Superior Court of Ware County, a motion styled: "OCGA 17-9-4 Motion in Law & Equity to (A) Declare the `Judgment of Conviction' & the `Judgment of Sentence' Against Him, in the Premises, a Void, Illegal & Unenforcable `Nullity,' and (B) to Grant Him Appropriate Relief." Among other claims, Glean asserte...
...abeas corpus. 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. OCGA § 17-9-4. An assertion that a judgment is void because venue is improper is cognizable under OCGA § 17-9-4, and the denial of such a motion is directly appealable. Wallace v. State, 284 Ga. 429, 667 S.E.2d 590 (2008). See also Chester v. State, 284 Ga. 162, 163(2), 664 S.E.2d 220 (2008). Thus, at least one of Glean's claims was properly before the trial court in his OCGA § 17-9-4 motion and should have been addressed. [2] Accordingly, the judgment below is reversed, and the case is remanded to the trial court for a determination of the merits of any claims properly presented under OCGA § 17-9-4....
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Miller v. State, 277 Ga. 372 (Ga. 2003).

Cited 1 times | Published | Supreme Court of Georgia | Nov 17, 2003 | 589 S.E.2d 108, 2003 Fulton County D. Rep. 3397

Sears, Presiding Justice. The appellant, Tyrone Miller, was convicted of murder in 1995 and sentenced to life in prison. This Court affirmed his conviction on direct appeal.1 In January 2003, Miller, relying on OCGA § 17-9-4,2 filed the present motion to void his conviction....
...Moreover, this Court has recently held that when a defendant attempts such a second appeal, it is improper and should be dismissed.3 We reiterate that holding today, and, accordingly, dismiss the present appeal. Appeal dismissed. All the Justices concur. Miller v. State, 267 Ga. 92 (475 SE2d 610) (1996). OCGA § 17-9-4 provides as follows: “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.” Shields v....
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Moore v. State, 276 Ga. 711 (Ga. 2003).

Cited 1 times | Published | Supreme Court of Georgia | Jun 30, 2003 | 583 S.E.2d 25, 2003 Fulton County D. Rep. 2026

...At Moore’s request, he was sentenced to life in prison without parole. While serving this sentence at a state prison in Tattnall County, Moore filed in the Superior Court of Floyd County, the court in which he had been tried for murder, a “Motion to Dismiss Case and Immediate Release of Defendant Pursuant to O.C.G.A. § 17-9-4.” The trial court dismissed the motion, concluding that it did not have jurisdiction to address the issues Moore raised....