What constitutes "the face of the record or pleadings."

- When it is sought to arrest a judgment imposing a sentence in a criminal case, "the face of the record or pleadings" have been held to be the indictment, plea, verdict, and judgment. Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).

Challenge to the sufficiency of the substance of an indictment can be made after trial by means of a motion in arrest of judgment. Bowman v. State, 227 Ga. App. 598, 490 S.E.2d 163 (1997).

Challenge to enhanced sentence based on allegedly defective indictment.

- Defendant could not challenge a sentence for family violence battery on appeal, claiming that the sentence was erroneously enhanced from a misdemeanor to a felony under O.C.G.A. § 16-5-23.1(f)(2) based on a previous conviction arising from a guilty plea to the same offense that was based on a defective indictment because since the defendant failed to challenge the indictment at the time the defendant pleaded guilty, the proper remedy was a motion in arrest of judgment under O.C.G.A. § 17-9-61(b) or habeas corpus. Grogan v. State, 297 Ga. App. 251, 676 S.E.2d 764 (2009).

After defendant's conviction has been affirmed on appeal, motion in arrest of judgment is one of three available remedies.

- 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, the 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).

Absent perjury, fraud, accident, or mistake, only defects not amendable form basis for motion.

- Verdict of a jury and the judgment based thereon cannot be set aside on a motion filed for that purpose, except for defects not amendable which appear on the face of the record, unless the verdict is obtained by perjury, fraud, accident, or mistake. Bonner v. State, 63 Ga. App. 464, 11 S.E.2d 431 (1940).

When arrest of judgment should be granted.

- Motion in arrest of judgment due to a defective indictment should only be granted when the indictment was absolutely void. State v. Hammons, 252 Ga. App. 226, 555 S.E.2d 890 (2001).

Certification of judge as to judge's knowledge of events as basis for motion.

- In a motion for new trial it might be appropriate for a judge to certify to events which transpired in the judge's presence, but such certification of anything within the judge's knowledge would not constitute the basis for a motion in arrest of judgment. Pippin v. State, 172 Ga. 224, 157 S.E. 185, answer conformed to, 43 Ga. App. 16, 157 S.E. 913 (1931).

Certification of judge as to allegations in motion does not make allegations part of the record.

- Fact that the judge below certifies on appeal to the truth of the allegations in the motion in arrest of judgment does not make those facts a part of the record to which the motion in arrest relates. Pippin v. State, 172 Ga. 224, 157 S.E. 185, answer conformed to, 43 Ga. App. 16, 157 S.E. 913 (1931).

What matters not properly presented in motion in arrest of judgment.

- Motion in arrest of judgment is not the proper mode of presenting to the attention of the court errors in overruling a motion for continuance or in allowing a separation of the jury. Pippin v. State, 172 Ga. 224, 157 S.E. 185, answer conformed to, 43 Ga. App. 16, 157 S.E. 913 (1931).

Erasure and substitute in verdict as grounds for appellate investigation.

- If a verdict is rendered by a jury and there is an erasure and substitution of words, and the meaning of the verdict is perfectly clear, there is no reason why the verdict should be rejected, nor does such erasure constitute a basis for investigation by the appellate courts. Pippin v. State, 172 Ga. 224, 157 S.E. 185, answer conformed to, 43 Ga. App. 16, 157 S.E. 913 (1931).

Attack by motion on constitutionality of a statute not invoked in the prosecution.

- When, by motion in arrest of judgment, a portion of a criminal statute is attacked as unconstitutional, and when neither the indictment, plea, verdict, nor judgment contains anything to indicate that the portion of the statute attacked as unconstitutional was applied or invoked in the prosecution, such motion in arrest of judgment does not present the question to the Supreme Court for determination. Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).

Time of motions.

- Limitation provided by the statute as to the time within which each must be made constitutes the only difference between a motion to set aside and a motion to arrest in judgment. Artope v. Barker, 74 Ga. 462 (1885); Regopoulas v. State, 116 Ga. 596, 42 S.E. 1014 (1902); Garfield Oil Mills v. Stephens, 16 Ga. App. 655, 85 S.E. 983 (1915); Maddox Coffee Co. v. McHan, 22 Ga. App. 198, 95 S.E. 736 (1918).

Motions in arrest of judgment may be filed in the criminal cases within the term the judgment was rendered. Lacey v. State, 253 Ga. 711, 324 S.E.2d 471 (1985).

Defendant's challenge to the defendant's misdemeanor traffic convictions by a motion to vacate was not an appropriate remedy and the defendant's motion could not be construed as a motion for arrest of judgment or other alternative motion because the motion was untimely under O.C.G.A. § 40-13-33(a); the 180-day limit applied to any challenge that could have been brought by habeas corpus, and suspension of a driver's license interfered with a liberty interest. Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017).

Court correctly dismissed the defendant's motions in arrest of judgment, which were both filed in the trial court on July 12, 2016, as untimely because the defendant's convictions were entered on May 10, 2016, during the trial court's May 2016 term, which ended on July 3; although one of the motions was postmarked on July 1, that did not help the defendant as both motions were filed with the clerk of court after the May term had ended and were therefore untimely. Thompson v. State, Ga. , 816 S.E.2d 646 (2018).

Motion filed 21 years after conviction.

- Motion in arrest of judgment based on a claim that an indictment lacked an essential element had to be made during the term in which the judgment was obtained and the defendant's motion, filed 21 years after the defendant was convicted on a charge of armed robbery, was untimely. Motes v. State, 262 Ga. App. 728, 586 S.E.2d 682 (2003).

Motion in arrest of judgment, like a motion for withdrawal of plea, must be made at the same term the judgment was obtained; a trial court was without jurisdiction to grant the defendant's motion to withdraw the defendant's guilty plea which was not filed within the same term of court, and the trial court was directed to reinstate the original conviction and sentence. Bonner v. State, 268 Ga. App. 170, 601 S.E.2d 478 (2004).

When judgments on defendants' convictions were entered in April 2003 but their motions in arrest of judgment were not filed until January 2005, the motions were untimely. Mitchell v. State, 282 Ga. 416, 651 S.E.2d 49 (2007).

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).

Defendant waived the defendant's right to be tried under a perfect indictment because the defendant did not file a special demurrer within ten days after the arraignment as required by O.C.G.A. § 17-7-110. Additionally, to the extent the defendant's motion was one in arrest of judgment, the motion was untimely because the motion was not filed in the same term of court as the judgment as required by O.C.G.A. § 17-9-61. Thompson v. State, 286 Ga. 889, 692 S.E.2d 379 (2010), overruled on other grounds, State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011).

Because the defendant did not file a timely special demurrer to the indictment or a timely motion in arrest of judgment, the defendant waived any claim that could have been raised via special or general demurrer. Kirt v. State, 309 Ga. App. 227, 709 S.E.2d 840 (2011).

Court's delay in providing written notice does not extend time.

- Defendant's motion in arrest of judgment did not toll the time for filing an appeal of the defendant's conviction under O.C.G.A. § 5-6-38(a) as the motion was filed after the term of the trial court in which the defendant was convicted and was untimely under O.C.G.A. § 17-9-61(b); the fact that the trial court was late in sending the defendant written notice of the court's ruling on the motion in arrest of judgment did not deny the defendant the right to appeal the defendant's conviction, which was lost years earlier when the motion in arrest of judgment was untimely filed. Smith v. State, 263 Ga. App. 414, 587 S.E.2d 787 (2003).

Denial of motion for out-of-time appeal was not an abuse of discretion as the trial court credited defense counsel's testimony that counsel advised the defendant of the defendant's right to appeal the defendant's aggravated assault conviction within 30 days, that the evidence against the defendant was overwhelming, that counsel did not discern any appropriate grounds for filing an appeal, and that the defendant took counsel's advice to file a motion to remold the defendant's sentence instead. Huff v. State, 271 Ga. App. 553, 610 S.E.2d 177 (2005).

Motion properly denied.

- Inasmuch as it was established that a violation of O.C.G.A. § 40-6-395 was alleged to have occurred in Douglas County, Georgia, the State Court of Douglas County had subject-matter jurisdiction over the case; thus, the denial of the defendant's motion in arrest of judgment was not error. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006).

Trial court did not err by denying the defendant's motion for a new trial on the ground that the indictment was defective for failing to allege the essential element of intent to commit a theft because the indictment clearly charged that the defendant attempted to commit a burglary, not that the defendant completed the crime. Coleman v. State, 318 Ga. App. 478, 735 S.E.2d 788 (2012).

Evidentiary hearing not required.

- Trial court's denial of the defendant's motion to allow an out-of-time appeal without conducting an evidentiary appeal was not an abuse of discretion as the defendant explained to the trial court that the defendant decided, as a matter of strategy, to file a pro se motion in arrest of judgment under O.C.G.A. § 17-9-61 rather than an immediate direct appeal; there was no need to inquire further into whether the defendant received ineffective assistance of counsel in failing to file an immediate direct appeal. Smith v. State, 263 Ga. App. 414, 587 S.E.2d 787 (2003).

Preservation for appellate review.

- Because the defendant's motion in arrest of judgment was untimely under O.C.G.A. § 17-9-61(b), in that the motion was filed over five years after judgment was entered, the denial of the motion by the trial court was not subject to appellate review. Myers v. State, 311 Ga. App. 668, 716 S.E.2d 772 (2011).

Cited in Gravitt v. State, 165 Ga. 779, 142 S.E. 100 (1928); Pippin v. State, 172 Ga. 224, 157 S.E. 185 (1931); Phillips v. State, 60 Ga. App. 622, 4 S.E.2d 698 (1939); Berkeley v. State, 74 Ga. App. 711, 41 S.E.2d 265 (1947); Sellers v. State, 82 Ga. App. 761, 62 S.E.2d 395 (1950); McEwen v. State, 108 Ga. App. 352, 133 S.E.2d 38 (1963); Hatfield v. State, 119 Ga. App. 110, 166 S.E.2d 431 (1969); Edwards v. State, 226 Ga. 811, 177 S.E.2d 668 (1970); Wiley v. State, 124 Ga. App. 654, 185 S.E.2d 582 (1971); Bowen v. State, 144 Ga. App. 329, 241 S.E.2d 431 (1977); Hubbard v. State, 167 Ga. App. 32, 305 S.E.2d 849 (1983); State v. Kight, 175 Ga. App. 65, 332 S.E.2d 363 (1985); May v. State, 179 Ga. App. 736, 348 S.E.2d 61 (1986); Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987); State v. O'Quinn, 192 Ga. App. 359, 384 S.E.2d 888 (1989); Walker v. State, 199 Ga. App. 701, 405 S.E.2d 887 (1991); Hammock v. State, 201 Ga. App. 614, 411 S.E.2d 743 (1991); Stargell v. State, 204 Ga. App. 45, 418 S.E.2d 372 (1992); Cabell v. State, 221 Ga. App. 192, 471 S.E.2d 222 (1996); Worle v. State, 227 Ga. App. 575, 489 S.E.2d 374 (1997); Dandy v. State, 253 Ga. App. 407, 559 S.E.2d 150 (2002); Pearson v. State, 258 Ga. App. 651, 574 S.E.2d 820 (2002); Dasher v. State, 285 Ga. 308, 676 S.E.2d 181 (2009); McDaniel v. State, 298 Ga. App. 558, 680 S.E.2d 593 (2009); Fouts v. State, 322 Ga. App. 261, 744 S.E.2d 451 (2013); Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013).

ALR.

- Time within which application to reopen or set aside a judgment by confession under warrant of attorney may be made, 112 A.L.R. 797.

Scope and character of meritorious defense as condition of relief from judgment, 174 A.L.R. 10.

Right of successful party to have judgment in his favor vacated or set aside on grounds of mistake, inadvertence, excusable neglect, or the like, 40 A.L.R.2d 1127.

Attorney's inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674.

Right to a jury trial on motion to vacate judgment, 75 A.L.R.3d 894.

DNA evidence as newly discovered evidence which will warrant grant of new trial or other postconviction relief in criminal case, 125 A.L.R.5th 497.

Actual innocence exception to procedural bars in state post-conviction proceedings, 97 A.L.R.6th 263.