In the Supreme Court of Georgia
Decided: February 15, 2022
S22A0098. WARE v. THE STATE.
PETERSON, Justice.
Jermaine Ware was convicted of malice murder and other
crimes, with a final disposition being entered by the Superior Court
of Polk County in December 2012. Ware appealed, and this Court
affirmed Ware’s convictions on direct appeal. See Ware v. State, 302
Ga. 792 (809 SE2d 762) (2018). In June 2021, Ware filed a pro se
motion in arrest of judgment, alleging, among other things, that the
indictment was defective. The superior court denied Ware’s motion,
stating that Ware was barred from raising issues that could have
been raised on direct appeal. Ware appeals, but we need not consider
the merits of Ware’s arguments because the superior court should
have dismissed the motion as untimely. Therefore, we vacate the
trial court’s order and remand the case with direction.
The law is clear that a defendant must file a motion in arrest
of judgment during the term in which the judgment was entered.
See OCGA § 17-9-61 (b) (“A motion in arrest of judgment must be
made during the term at which the judgment was obtained.”); Lay
v. State, 289 Ga. 210, 211 (2) (710 SE2d 141) (2011) (same). When a
defendant files a motion in arrest of judgment after such term has
expired, the motion is untimely, and the trial court lacks the
authority to grant any relief. See Witherspoon v. State, 304 Ga. 306,
307 (818 SE2d 512) (2018). A trial court presented with such a
motion should dismiss it, rather than deny it, and we will vacate a
trial court’s order that considers the merits of an untimely motion
in arrest of judgment. See id. And so it is here.
Ware’s convictions were entered in December 2012, during the
July term of the Polk County Superior Court that expired in March
2013. See OCGA § 15-6-3 (38) (A). Ware filed his motion in arrest of
judgment in June 2021, well after the expiration of the term in
which he was convicted. The superior court lacked jurisdiction to
rule on the merits of Ware’s untimely motion. Accordingly, we vacate
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the court’s order and remand with direction to dismiss Ware’s
motion as untimely.
Judgment vacated and case remanded with direction. All the
Justices concur.
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313 Ga. 324
FINAL COPY
S22A0098. WARE v. THE STATE.
PETERSON, Justice.
Jermaine Ware was convicted of malice murder and other
crimes, with a final disposition being entered by the Superior Court
of Polk County in December 2012. Ware appealed, and this Court
affirmed Ware’s convictions on direct appeal. See Ware v. State,
) (2018). In June 2021, Ware filed a pro se
motion in arrest of judgment, alleging, among other things, that the
indictment was defective. The superior court denied Ware’s motion,
stating that Ware was barred from raising issues that could have
been raised on direct appeal. Ware appeals, but we need not consider
the merits of Ware’s arguments because the superior court should
have dismissed the motion as untimely. Therefore, we vacate the
trial court’s order and remand the case with direction.
The law is clear that a defendant must file a motion in arrest
of judgment during the term in which the judgment was entered.
See OCGA § 17-9-61 (b) (“A motion in arrest of judgment must be
made during the term at which the judgment was obtained.”); Lay
v. State,
) (2011) (same). When a
defendant files a motion in arrest of judgment after such term has
expired, the motion is untimely, and the trial court lacks the
authority to grant any relief. See Witherspoon v. State,
) (2018). A trial court presented with such a
motion should dismiss it, rather than deny it, and we will vacate a
trial court’s order that considers the merits of an untimely motion
in arrest of judgment. See
id.
And so it is here.
Ware’s convictions were entered in December 2012, during the
July term of the Polk County Superior Court that expired in March
2013. See OCGA § 15-6-3 (38) (B). Ware filed his motion in arrest of
judgment in June 2021, well after the expiration of the term in
which he was convicted. The superior court lacked jurisdiction to
rule on the merits of Ware’s untimely motion. Accordingly, we vacate
the court’s order and remand with direction to dismiss Ware’s
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motion as untimely.
Judgment vacated and case remanded with direction. All the
Justices concur.
Decided February 15, 2022.
Motion in arrest of judgment. Polk Superior Court. Before
Judge Murphy.
Jermaine Ware, pro se.
Jack Browning, District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew B. Crowder, Assistant Attorney General, for appellee.
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