Harper v. State

• Decision Date: 23 November 2009
• Docket Number: No. S09A1019.,S09A1019.
• Citation: 286 Ga. 216,686 S.E.2d 786
• Parties: HARPER v. The STATE.
• Court: Georgia Supreme Court

686 S.E.2d 786

286 Ga. 216

HARPER v. The STATE.

No. S09A1019.

Supreme Court of Georgia.

November 23, 2009.

Richard J. Harper, pro se.

Gwendolyn Keyes Fleming, Dist. Atty., Leonora Grant, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., for appellee.

THOMPSON, Justice.

Appellant Richard James Harper was convicted of murder in the DeKalb County Superior Court in 1982. His conviction was affirmed on appeal. Harper v. State, 251 Ga. 183, 304 S.E.2d 693 (1983). In May 2008 Harper filed a motion to vacate void judgment, claiming the DeKalb County trial court lacked jurisdiction to hear his case and its judgment was void. Harper's motion was denied on the merits and he appealed. We dismiss Harper's appeal and hold that a motion to vacate a conviction is not an appropriate remedy in a criminal case, thereby overruling Division 2 of Chester v. State, 284 Ga. 162, 664 S.E.2d 220 (2008).

1. At the time Harper filed his motion to vacate, and prior to this Court's recent decision in Chester, the law in this state was that a petition to vacate or modify a judgment of conviction was not an appropriate remedy in a criminal case. Williams v. State, 283 Ga. 94, 656 S.E.2d 144 (2008); Wright v. State, 277 Ga. 810, 811, 596 S.E.2d 587 (2004); Shields v. State, 276 Ga. 669, 671, 581 S.E.2d 536 (2003); Lacey v. State, 253 Ga. 711, 324 S.E.2d 471 (1985); Crane v. State, 249 Ga. 501, 292 S.E.2d 67 (1982); Waye v. State, 239 Ga. 871, 874, 238 S.E.2d 923 (1977); Waits v. State, 204 Ga. 295(10), 49 S.E.2d 492 (1948); Claughton v. State, 179 Ga. 157(1), 175 S.E. 470 (1934); Gravitt v. 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). In order to challenge a conviction after it had been affirmed on direct appeal, criminal defendants 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.¹

This case and the many cases filed in the year since Chester was decided, however, have exposed the deficiencies of that opinion, and we find it was wrongly decided. Its ruling, creating a new post-appeal procedure for challenging a criminal conviction, marked an improvident departure from more than a century of precedent, significantly undermined the finality of criminal judgments, and has proved unworkable inasmuch as Georgia law is silent as to the procedural framework and rules applicable to this newly created remedy. Unlike the myriad rules governing previously recognized and statutorily created procedures for challenging a criminal conviction, there are no rules or precedents guiding individuals in the filing of, or courts in their consideration of, post-appeal motions to vacate a criminal conviction.

While "[t]he rule of stare decisis is a wholesome one, [it] should not be used to sanctify and perpetuate error.... Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes." City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 732-733, 13 S.E. 252 (1891). See Garza v. State, 284 Ga. 696, 703, 670 S.E.2d 73 (2008) (overruling three decades of precedent requiring only slight movement under kidnapping statute); Humthlett v. Reeves, 211 Ga. 210, 215(1)(b), 85 S.E.2d 25 (1954) (stare decisis not applicable where decision so recently rendered and in such direct conflict with precedent that "no one could have been led to rely upon it as permanently fixing the law and been misled by it to his hurt and injury"). Accordingly, Division 2 of Chester is overruled and the law of criminal appellate procedure restored to its pre-Chester state, whereby a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.

2. Applying the correct law to the case at hand, we hold Harper was not entitled to file a motion to vacate his criminal conviction and his appeal is subject to dismissal. See Foster v. Bowen, 253 Ga. 33, 315 S.E.2d 656 (1984).

Appeal dismissed.

All the Justices concur, except HUNSTEIN, C.J., BENHAM and MELTON, JJ., who dissent.

MELTON, Justice, dissenting.

This is a straightforward case that falls squarely within the parameters of this Court's recent decision in Chester v. State, 284 Ga. 162(2), 664 S.E.2d 220 (2008). Richard James Harper was found guilty of murder in DeKalb County Superior Court in 1982. His conviction was affirmed on appeal. Harper v. State, 251 Ga. 183, 304 S.E.2d 693 (1983). 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."). The trial court denied the motion, prompting this appeal.

Because the evidence presented at trial showed that the crime occurred at Overnight Transport, located at 2427 Moreland Avenue in DeKalb County, Georgia, the DeKalb County Superior Court had jurisdiction to try and convict Harper, and his conviction was not void. See Chester, supra, 284 Ga. at 163(2), 664 S.E.2d 220.² Therefore, under this Court's decision in Chester, the judgment of the trial court would have to be affirmed.

Instead of following Chester, however, the majority reverts back to and embraces the arguments set forth in the Chester special concurrence that were expressly rejected in that case. In overruling this Court's one-year-old decision in Chester, the majority now states that Chester "creat[ed] a new post-appeal procedure for challenging a criminal conviction, [which] marked an improvident departure from more than a century of precedent, significantly 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). By its plain terms, the statute would allow a "judgment," "void for any ... cause," to be declared so in "any court" at a time when the invalidity of the judgment becomes material.

The majority's analysis would prevent a criminal defendant from attacking a void sentence through a motion to vacate, and limit the statute's application to, for example, subsequent unrelated proceedings where the validity of a previous conviction might be called into question. See Brown v. Earp, 261 Ga. 522, 407 S.E.2d 737 (1991). While it is true that the statute would allow a collateral attack on a void conviction in a subsequent action wherein a party attempted 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 "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.

Prior to Chester, a defendant could challenge both the underlying conviction and the sentence if done in a separate collateral...