Munye v. Brickhouse, A17A1188 A17A1189 A17A1190.

• Citation: 803 S.E.2d 775
• Decision Date: 01 August 2017
• Docket Number: A17A1188 A17A1189 A17A1190.
• Parties: MUNYE v. The STATE. Brickhouse v. The State. Williams v. The State.
• Court: United States Court of Appeals (Georgia)

342 Ga.App. 680

803 S.E.2d 775

MUNYE

v.The STATE.

Brickhouse

v.The State.

Williams

v.The State.

A17A1188 A17A1189 A17A1190.

Court of Appeals of Georgia.

August 1, 2017

Troy Paul Hendrick, Douglas Warren McDonald Jr., Cornelia, Sidney Leighton Moore III, Atlanta, for Appellants.

Donna Coleman Stribling, Wystan Getz, for Appellee.

Barnes, Presiding Judge.

These appeals arise out of the appellants' convictions for misdemeanor traffic offenses in the now-defunct Recorder's Court of DeKalb County (the "DeKalb Recorder's Court"). In Case No. A17A1188, Adan Munye appeals the dismissal of his motion to vacate his convictions for driving with a suspended license on the ground that they were void. Munye also appeals the denial of his motion to vacate his sentences for those offenses as void. In Case No. A17A1189, Brandon Brickhouse appeals the denial of his motion to vacate his sentence for driving with a suspended license as void, and in Case No. A17A1190, Christina Williams appeals the denial of her motion to vacate her sentences for driving without valid insurance and driving with a suspended registration as void.¹

For the reasons discussed below, we conclude that Munye was not entitled to pursue his motion to vacate his convictions because such a motion is not an appropriate remedy in a criminal case, and his motion could not be construed as a timely motion in arrest of judgment or other alternative motion. We further conclude that Munye and the other appellants were not entitled to pursue their motions to vacate their sentences because their motions were not the proper procedural vehicles for challenging the subject matter jurisdiction of the DeKalb Recorder's Court over misdemeanor traffic offenses, which is the dispositive issue in these cases. Accordingly, we must dismiss these appeals for lack of jurisdiction.²

Case No. A17A1189

1. On June 12, 2014, Munye was issued a uniform traffic citation for committing the misdemeanor traffic offense of driving with a suspended license in violation of OCGA § 40–5–121 (a). On June 19, 2014, Munye was issued another uniform traffic citation for committing the same offense.

Munye was tried for the June 19 misdemeanor traffic offense in a bench trial before the DeKalb Recorder's Court on September 2, 2014. He was found guilty and sentenced to 12 months (with the first 5 days in custody and the remainder on probation), and ordered to pay a $600 fine and other fees.³

In late September 2014, for reasons somewhat unclear in the record, Munye was taken into custody for the June 12 misdemeanor traffic offense. On October 7, 2014, Munye appeared before the DeKalb Recorder's Court, entered a plea of nolo contendere, and was sentenced to time already served in jail.

Following his convictions and sentences, Munye did not file an application for a writ of certiorari to the Superior Court of DeKalb County within 30 days of the final determination of his cases in DeKalb Recorder's Court. See OCGA §§ 5–4–3 ; 5–4–6 (a).⁴ Several months later, in June 2015, Munye filed a motion in DeKalb Recorder's Court seeking "relief for lack of subject matter jurisdiction" and requesting that his two convictions and sentences for the misdemeanor traffic offense of driving with a suspended license be vacated as void ab initio.

In his motion, Munye contended that both of his underlying convictions and sentences were void and should be vacated because the DeKalb Recorder's Court lacked subject matter jurisdiction to adjudicate and impose punishment for misdemeanor state traffic offenses. According to Munye, the DeKalb Recorder's Court purported to exercise jurisdiction over all misdemeanor state traffic offenses, which was inconsistent with the 1959 local act that created the court and the Georgia Constitution of 1983. Munye asserted that under the local act and the Georgia Constitution, the DeKalb Recorder's Court had jurisdiction to adjudicate county ordinance violations and certain state traffic laws if adopted into the county's ordinances, but not jurisdiction "to enforce state law as such," as the court had done in his two cases. Munye also argued that his sentences were void because they exceeded the punishment that could be imposed by the DeKalb Recorder's Court for county ordinance violations found in the DeKalb County Code of Ordinances. Munye alleged that he had spent time in jail, had paid improper fines and costs, and continued to have his license suspended by the Georgia Department of Driver Services because of his unlawful convictions and sentences.

The State opposed Munye's motion and sought to have it dismissed. The State argued that Munye's convictions were final and no longer subject to direct appeal, that Munye's motion to vacate his judgment of conviction was not an appropriate remedy in a criminal case, and that Munye's motion could not be construed as a timely filed motion in arrest of judgment or other alternative motion for seeking redress for allegedly void convictions. The State further argued that Munye's purported challenge to his sentences as void was in effect a challenge to his convictions and thus was procedurally improper.

Munye's motion was heard by a state court judge because of new legislation abolishing the DeKalb Recorder's Court.⁵ Following a hearing, the state court entered an order dismissing Munye's motion to vacate his convictions. The state court ruled that a motion to vacate a void conviction is not an appropriate remedy under Georgia law and concluded that Munye's motion could not be construed as a timely and properly filed motion for arrest of judgment or other alternative motion. With respect to Munye's motion to vacate his sentence, the trial court denied the motion, concluding that Munye's sentences fell within the statutory range of punishment for the misdemeanor traffic offense of driving with a suspended license and thus were not void. Munye now directly appeals these rulings by the state court.

(a) Munye contends that the state court erred in dismissing his motion to vacate his criminal convictions as void. We disagree.

It is well-settled that a motion to vacate a judgment of conviction as void is not an appropriate remedy in a criminal case. See Harper v. State , 286 Ga. 216, 217–218 (1), 686 S.E.2d 786 (2009) ; Matherlee v. State , 303 Ga. App. 765, 766, 694 S.E.2d 665 (2010).⁶ Rather, a defendant attacking his underlying conviction is limited to timely filing a motion for new trial, a direct appeal from his criminal conviction, a motion to withdraw his guilty plea, an extraordinary motion for new trial, a motion in arrest of judgment, or a petition for the writ of habeas corpus. See von Thomas v. State , 293 Ga. 569, 572 (2), 748 S.E.2d 446 (2013) ; Harper , 286 Ga. at 217–218 (1), 686 S.E.2d 786 ; Collins v. State , 338 Ga. App. 886, 888 (1), n. 8, 792 S.E.2d 134 (2016). If Munye's motion cannot be construed as one of these alternative filings, his direct appeal from the denial of his motion to vacate his convictions is subject to dismissal. See Williams v. State , 287 Ga. 192, 194, 695 S.E.2d 244 (2010) ; Harper , 286 Ga. at 218 (2), 686 S.E.2d 786 ; Jones v. State , 322 Ga. App. 269, 272 (1), 745 S.E.2d 1 (2013).

Of the alternative filings listed above, Munye's sole argument is that his motion should have been construed as a timely motion in arrest of judgment under OCGA § 17–9–61.⁷ However, his motion to vacate his conviction as void cannot be construed as a motion in arrest of judgment or other alternative motion attacking his underlying conviction in light of OCGA § 40–13–33 (a). That statutory subsection provides:

Any challenge to a misdemeanor conviction of any of the traffic laws of this state or the traffic laws of any county or municipal government which may be brought pursuant to

Chapter 14 of Title 9 [habeas corpus] must be filed within 180 days of the date the conviction becomes final.

OCGA § 40–13–33 (a). A defendant's failure to comply with the 180–day time limitation divests a court of jurisdiction to hear the challenge to the traffic conviction. OCGA § 40–13–33 (d).

Our Supreme Court has held that the 180–day limitation period contained in OCGA § 40–13–33 (a) does not apply "only to attacks by petition for habeas corpus relief." Brown v. Earp , 261 Ga. 522, 522, 407 S.E.2d 737 (1991). Rather, the limitation period applies broadly to any challenge to a misdemeanor traffic conviction that could have been brought by means of a petition for habeas corpus, "regardless of whether the challenge was actually made by that procedure." Id. at 523, 407 S.E.2d 737. See Earp v. Brown , 260 Ga. 215, 216 (2) (a), 391 S.E.2d 396 (1990) ; Allen v. State , 267 Ga. App. 85, 88 (4), 598 S.E.2d 832 (2004) (whole court); Jeter v. State , 269 Ga. App. 266, 267, 603 S.E.2d 783 (2004) ; Walker v. State , 199 Ga. App. 701, 702–703, 405 S.E.2d 887 (1991). Accordingly, pursuant to OCGA § 40–13–33 (a), any challenge brought by Munye to his misdemeanor traffic convictions that could have been brought by means of habeas corpus had to be brought within 180 days of his convictions becoming final. See id. And, here, Munye could have challenged his misdemeanor traffic convictions by means of habeas corpus.

Munye's claim was that the DeKalb Recorder's Court lacked subject matter jurisdiction to adjudicate and impose punishment for misdemeanor traffic offenses, and a collateral challenge to a conviction based on the alleged lack of jurisdiction of a recorder's court can be made by a petition for habeas corpus. See Gibson v. Gober , 204 Ga. 714, 51 S.E.2d 664 (1949) ; Clarke v. Johnson , 199 Ga. 163, 33 S.E.2d 425 (1945) ; Brooks v. Sturdivant , 177 Ga. 514, 170 S.E. 369 (1933). See also Walker , 199 Ga. App. at 703, 405 S.E.2d 887 (noting that defendant "could have challenged his misdemeanor traffic conviction by habeas corpus petition since he attacked the jurisdiction of the probate court"). A challenge to a nolo plea also can be made by a petition for habeas corpus. See Allen , 267...