FINAL COPY
S18A0887. WITHERSPOON v. THE STATE.
PETERSON, Justice.
Rufus Charles Witherspoon appeals pro se from the denial of his motions
in arrest of judgment, which he filed approximately 27 years after his
convictions. Because the trial court correctly concluded that Witherspoon’s
motions were untimely, we affirm.
In 1990, a jury found Witherspoon guilty of two counts of felony murder
and other crimes in relation to the shooting death of a single victim.
Witherspoon appealed, and we affirmed his convictions. See Witherspoon v.
State,
) (1992). Witherspoon later filed several motions
challenging his convictions, arguing, among other things, that the trial court
erred in sentencing him on both felony murder counts and that the error
subjected him to double jeopardy. The trial court dismissed his motions for lack
of jurisdiction, but vacated the sentence imposed on one felony murder count.1
In November 2017, Witherspoon filed two motions in arrest of judgment, again
raising claims related to the trial court’s initial failure to merge the two felony
murder counts. The trial court denied the motions as untimely, and this appeal
ensued.
We do not reach the merits of Witherspoon’s arguments on appeal,
because the untimeliness of his motions precluded any relief. OCGA § 17-9-61
(b) requires that a motion in arrest of judgment “be made during the term in
which the judgment was obtained.” Witherspoon’s convictions were entered on
November 28, 1990, during the October term of the Appling County Superior
Court that expired in February 1991. See OCGA § 15-6-3 (7) (A). Witherspoon
filed his motions in November 2017, almost 27 years after the expiration of the
term in which he was convicted. Because Witherspoon’s motions were untimely,
the trial court lacked authority to grant any relief, and it properly disposed of his
motions on this basis. See Brooks v. State,
)
(2017) (providing that although a trial court should “dismiss” rather than “deny”
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Witherspoon filed a discretionary application from the dismissal of one of those
motions, and we dismissed that application.
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a motion it lacks jurisdiction to consider, we will vacate only when the court
considers the merits of that motion). Therefore, we affirm.
Judgment affirmed. Hines, C. J., Melton, P. J., Benham, Hunstein,
Nahmias, Blackwell, and Boggs, JJ., concur.
Decided August 20, 2018.
Murder. Appling Superior Court. Before Judge Scarlett.
Rufus Charles Witherspoon, pro se.
Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, for appellee.
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