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Hardeman v. State

Defendant who gambled on his acquittal under the aggravated sexual battery statute could challenge the constitutionality of that statute for the first time on appeal.

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After a jury found Dexter Hardeman guilty of aggravated sexual battery, the trial court entered its judgment of conviction on the guilty verdict and imposed the minimum 10-year sentence. Hardeman filed an alternative motion for new trial or to arrest the judgment, wherein he challenged the constitutionality of the statutory definition of “aggravated sexual battery” as codified in OCGA § 16-6-22.2 b. The trial court denied the alternative motion, and Hardeman appeals to this Court on the ground that this case is within our exclusive jurisdiction over constitutional issues. The Attorney General has moved to transfer to the Court of Appeals, however, urging that the attack on the constitutionality of the statute was untimely. At the outset, we must address the motion to transfer, so as to determine whether this Court has jurisdiction to consider the merits of the appeal.

Boswell v. State, 114 Ga. 40 39 SE 897 1901 holds that an accused cannot launch an initial constitutional challenge in the context of a motion for new trial. That is still the law of this state. Kolokouris v. State, 271 Ga. 597 1 __SE2d__ 1999; E.P. v. State of Ga., 230 Ga. 770 199 SE2d 313 1973. Thus, the motion for new trial was an untimely attack on the constitutionality of OCGA § 16-6-22.2 b. However, Boswell, supra at 41 2, also indicates that the issue can be raised “by motion in arrest of judgment after verdict.” Thus, if Boswell remains viable for this additional proposition, then the alternative motion in arrest of judgment was a timely procedural vehicle for contesting the constitutionality of the statute.

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