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Perez-Castillo v. State

Defendant who gambled on his acquittal under the marijuana trafficking statute could not challenge the constitutionality of that statute for the first time on appeal.

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Appellant Edwin Perez-Castillo appeals his conviction for trafficking in more than 50 pounds of marijuana.1 Following the jury’s guilty verdict, the trial court entered its judgment of conviction and sentence. Appellant then filed alternative motions for a new trial or to arrest the judgment. In his motion to arrest the judgment, appellant raised for the first time several constitutional challenges to the criminal statute under which he was convicted, OCGA § 16-13-31. The trial court denied both of appellant’s post-conviction motions, and he appeals to this Court, seeking to invoke our exclusive jurisdiction over unresolved questions surrounding the constitutionality of a statute.2

The State urges that this Court is without jurisdiction to consider this appeal, and that it must be transferred to the Court of Appeals. We agree. It is well-established that a criminal defendant may not initiate a constitutional attack against a statute in either a motion for a new trial3 or a motion to arrest the judgement.4 A constitutional attack on a state statute ” ‘must be made at the first opportunity, and it is too late to raise such a question after a guilty verdict has been returned by the jury.’ “ 5 Because appellant waited until filing his motion to arrest the judgment—well after his conviction—to raise his constitutional challenges to section 16-13-31, those challenges must be deemed waived on appeal.

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