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Johnson v. State

The defendant's motion in arrest of judgment was untimely because he did not file it during the term of court in which the trial court entered the judgment.

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Melvin Lee Johnson appeals from the trial court’s denial of his motion in arrest of judgment. For the reasons that follow, we affirm. Johnson was indicted in Randolph County in November 2009 on multiple counts. The case was set for a jury trial, but on September 1, 2010, Johnson entered a negotiated guilty plea to one count of malice murder. On September 3, 2010, per the plea agreement, Johnson was sentenced to life in prison with the possibility of parole for malice murder; the trial court entered an order of nolle prosequi on the remaining counts of the indictment, which were felony murder, aggravated assault, and possession of a firearm during the commission of a crime. On March 7, 2011, Johnson filed his motion in arrest of judgment in the superior court, asserting that the indictment failed to allege venue as to each charge. The motion was denied on March 14, 2011, and as “a trial court’s ruling on a motion in arrest of judgment is normally directly appealable to whichever appellate court has subject-matter jurisdiction over the case Cit.,” Lay v. State , 289 Ga. 210, 211 2 710 SE2d 141 2011, Johnson appealed to this Court.

Johnson’s motion raised what would be a proper ground for a motion in arrest of judgment. Wright v. State , 277 Ga. 810, 811 596 SE2d 587 2004. However, under OCGA § 17-9-61 a, a motion in arrest of judgment must be based on a non-amendable defect that appears on the face of the record or pleadings and “must be made during the term at which the judgment was obtained.” OCGA § 17-9-61 b. Lay , supra.

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