State v. Green
308 Ga. App. 33
Ga. Ct. App.2011Background
- Green pleaded guilty to sodomy in 1997, received a first-offender sentence with probation.
- In 1999 Green violated probation, was convicted and sentenced for sodomy and other offenses, and became subject to sexual offender registration.
- Green moved in 1999 to terminate or modify the sodomy sentence due to Powell v. State; the trial court denied the motion.
- In 2008 Green was convicted of failure to register as a sexual offender; this conviction was affirmed on appeal.
- In 2009 Green moved to pronounce a valid judgment, seeking vacatur of the sodomy conviction as violative of due process/privacy; the trial court vacated the conviction, and the State sought reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion to vacate a judgment is an authorized remedy to challenge a criminal conviction | Green argues the motion vacates due process/privacy violation. | State contends the motion to vacate is not a recognized remedy in criminal cases. | Motion to vacate is not authorized; trial court erred. |
| Whether Chester v. State authorized vacating a conviction to correct a void sentence | Green relies on Chester to allow voiding the conviction. | State argues Chester does not authorize vacating a conviction but only voiding sentences in some divisions. | Chester's division not controlling; court cannot vacate a conviction; reversal required. |
Key Cases Cited
- Powell v. State, 270 Ga. 327 (1998) (privacy right in private consensual conduct under OCGA 16-6-2)
- Green v. State, 303 Ga.App. 210 (2010) (safety of registration and sufficiency of evidence on failure to register)
- Roberts v. State, 286 Ga. 532 (2010) (vacatur procedures and void judgments limitations)
- Harper v. State, 286 Ga. 216 (2009) (limitations on correcting void judgments under state law)
- Williams v. State, 287 Ga. 192 (2010) (limitations on Chester division and remedies for void judgments)
- Chester v. State, 284 Ga. 162 (2008) (division on void-sentence correction; later partially overruled)
- O'Neal v. State, 285 Ga. 361 (2009) (standard for de novo review of questions of law)