O.C.G.A. § 17-9-63 (2019)

Annotations

JUDICIAL DECISIONS 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). Defects which will sustain a motion in arrest of judgment generally. - In order to sustain a motion in arrest of judgment, the defects must appear on the face of the record and must be fatal defects. Hatcher v. State, 176 Ga. 454, 168 S.E. 278 (1933). Enumerations of error which do not relate to unamendable defects appearing on the face of the record show no ground for reversal. Yarbrough v. State, 119 Ga. App. 46, 166 S.E.2d 35 (1969). Motion reaches defects, not cured by verdict, to which general demurrer could be interposed. - In criminal cases, a motion in arrest of judgment will reach any defect apparent on the face of the record, not cured by the verdict, to which the general demurrer could have been successfully interposed before arraignment. Mullen v. State, 51 Ga. App. 385, 180 S.E. 521 (1935). Motions filed in term in which judgments rendered are treated as motions in arrest of judgment. - Motions filed during the term in which judgment are rendered, alleging that the indictments are void, will be treated by the Supreme Court as motions in arrest of judgment as provided by this section. Marshall v. State, 229 Ga. 841, 195 S.E.2d 12 (1972). Oral motion to quash raises question of whether motion in arrest of judgment would lie. - Oral motion to quash an indictment which is made after the issue has been joined raises only the question of whether the indictment is so defective that a motion in arrest of judgment would lie. Curtis v. State, 102 Ga. App. 790, 118 S.E.2d 264 (1960).

If indictment attacked after verdict, presumption in favor of verdict. - After a verdict, every presumption and inference is in favor of the verdict. Hence, the pleading must be construed most strongly in favor of the pleader (the state). Rumph v. State, 60 Ga. App. 689, 4 S.E.2d 673 (1939). If defendant did not demur to the indictment, but waited until after the verdict before attacking the verdict’s sufficiency by way of a motion in arrest of judgment, every presumption and inference was in favor of the verdict, and the pleading would be construed most strongly in favor of the pleader (the state). Cordovano v. State, 61 Ga. App. 590, 7 S.E.2d 45 (1940). If the defendant waits until after the verdict and judgment and files a motion to set aside the verdict and judgment on the ground of certain alleged defects on the face of the indictment, every presumption is in favor of the verdict. Grier v. State, 64 Ga. App. 718, 13 S.E.2d 909 (1941). Inconsistent verdict not a valid basis for a motion in arrest of judgment. - Because Georgia did not recognize the inconsistent verdict rule, the state properly assigned error to the trial court’s grant of the defendant’s motion in arrest of judgment; the evidence was sufficient to conclude that defendant was guilty of possession of a firearm during the commission of a crime in violation of O.C.G.A. § 16-11-106(b)(1). State v. Robinson, 275 Ga. App. 117, 619 S.E.2d 806 (2005). Irregularities in jury composition may not be addressed by motion. - Motion in arrest of judgment may not be considered when directed at irregularities in the composition of the jury because this section only relates to the merits of the offense charged and did not entertain collateral attacks. Bowen v. State, 144 Ga. App. 329, 241 S.E.2d 431 (1977). Evidence that grand jury members were improperly drawn. - It is not within the province of this motion to embrace aliunde evidence tending to show

that the members of the grand jury were improperly drawn. Hand v. State, 88 Ga. App. 775, 77 S.E.2d 746 (1953). Attack by motion on constitutionality of a statute not invoked in the prosecution. - If, 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). Indictment sets forth offense with sufficient clarity. - Court does not err in overruling a motion in arrest of judgment if it is reasonably apparent from the indictment that every essential ingredient of the offense is set forth with sufficient clearness to enable the defendant and the jury to understand the nature of the offense and to enable the defendant to prepare a defense. Rumph v. State, 60 Ga. App. 689, 4 S.E.2d 673 (1939). Imperfect indictment which nonetheless charges violation understandable by the jury. - If a verdict, when construed with the indictment, does not find the defendant guilty of any offense, the judgment should be arrested, but when, regardless of the denomination of the offense, the allegations of the indictment charge, even imperfectly, a violation of the law which can be plainly understood by the jury, and a verdict finding the

defendant guilty cannot be ignored without violating the rules of common sense, sentence should be pronounced upon the finding. Rumph v. State, 60 Ga. App. 689, 4 S.E.2d 673 (1939). Before retrial, substance of indictment may also be tried by general demurrer. - Because a motion in arrest of judgment can be made after trial to challenge the substance of an indictment, it follows that a general demurrer can be made before retrial to challenge the substance of the indictment. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978). Form of objection if motion in arrest of judgment does not lie. - If an indictment is not on the indictment’s face so defective that a motion in arrest of judgment would lie, an objection to the indictment must be in writing. An oral objection, being ineffective for its purpose, is the equivalent of none at all, and, if no other action be taken, a waiver results. Curtis v. State, 102 Ga. App. 790, 118 S.E.2d 264 (1960). Cited in McClendon v. State, 81 Ga. App. 218, 58 S.E.2d 462 (1950); Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955); Slaughter v. State, 98 Ga. App. 59, 104 S.E.2d 911 (1958); Johnson v. State, 116 Ga. App. 406, 157 S.E.2d 773 (1967); Palmer v. State, 144 Ga. App. 480, 241 S.E.2d 597 (1978); Joiner v. State, 163 Ga. App. 521, 295 S.E.2d 219 (1982); Brown v. State, 181 Ga. App. 865, 354 S.E.2d 169 (1987); Dandy v. State, 253 Ga. App. 407, 559 S.E.2d 150 (2002).

RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 700 et seq. C.J.S. - 23A C.J.S., Criminal Procedure and Rights of the Accused, § 1980 et seq.

ALR. - Appealability of order arresting judgment in criminal case, 98 A.L.R.2d 737.

CHAPTER 10 SENTENCE AND PUNISHMENT Article 1 Procedure for Sentencing and Imposition of Punishment Sec.

(For effective date, see note.) Fixing of sentence; suspension or probation of sentence; change in sentence; eligibility for parole; prohibited modifications; exceptions. Judicial consideration of victim impact statement; form document; manner of rebuttal; effect of noncompliance; no creation of cause of action or right of appeal. Oral victim impact statement; presentation of evidence; cross-examination and rebuttal by defendant; effect of noncompliance; no creation of cause of action or right of appeal. Factoring into sentencing determinations citizenship status of convict. Split sentence. Conduct of presentence hearings in felony cases; effect of reversal for error in presentence hearing. Punishment for misdemeanors generally. Punishment for violations of Code Section 40-6-391. Punishment for misdemeanors of a high and aggravated nature. Imposition of misdemeanor punishment for felonies punishable by imprisonment for term of ten years or less. Review of sentences of imprisonment for period exceeding 12 years by three-judge panel [Repealed]. Punishment for serious violent offenders; authorization for reduction in mandatory minimum sentencing.

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