Appellant Jack Ray Wallace was convicted of the 1990 murder of his estranged wife, and his conviction was affirmed in Wallace v. State , 272 Ga. 501 530 SE2d 721 2000. In January 2008, Wallace filed a motion pursuant to OCGA § 17-9-4 to vacate the judgment of conviction as void. The trial court denied the motion and Wallace filed a direct appeal to this Court. The denial of a motion filed pursuant to OCGA § 17-9-4 is directly appealable. Chester v. State , 284 Ga. 162 2 664 SE2d 220 2008. OCGA § 17-9-4 provides that “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 where it becomes material to the interest of the parties to consider it.” A motion that alleges a ground upon which the judgment of conviction can be declared void is filed pursuant to OCGA § 17-9-4. Id., Collins v. State , 277 Ga. 586 591 SE2d 820 2004. If the motion alleges a ground which would not void the conviction, the motion does not qualify as a § 17-9-4 motion and the trial court’s ruling on the motion is not directly appealable. Id. Instead, the convicted defendant must raise the issue in the direct appeal from the judgment of conviction, in an extraordinary motion for new trial, in a petition for a writ of habeas corpus, or in a motion in arrest of judgment. Id .
Appellant asserts his murder conviction is void because venue was not in Ware County and because the trial court improperly amended the one-count indictment when it responded to an inquiry from the deliberating jury. Such allegations are grounds upon which a judgment of conviction can be declared void. Bradley v. State , 272 Ga. 740 3 533 SE2d 727 2000 ” ‘If a defendant is tried in the wrong venue, that trial court lacks jurisdiction of the offense so that no jeopardy attaches.’ Cit..”; Ingram v. State , 211 Ga. App. 252 1 438 SE2d 708 1993 if the indictment returned by the grand jury is materially affected by the trial court amending it by striking from or adding to its allegations, ” ‘it becomes void and can not be the basis of a conviction.’ Cit.”
