Hardeman v. StateHardeman v. State
- Reporters:
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- Before:
- Carley
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 ten-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
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) (523 SE2d 311) (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
This Court has suggested that
Boswell
is obiter dicta insofar as it purports to hold that an initial attack on the constitutionality of a criminal statute is timely if raised in a motion in arrest of judgment.
Hall v. State,
202 Ga. 42, 47 (2) (42 SE2d 130) (1947). Since it involved only a motion for new trial,
Boswell
would certainly appear to be dicta with regard to the timeliness of a constitutional challenge raised by another post-conviction motion. Moreover, even assuming that
Boswell
ever constituted viable authority for a criminal defendant’s use of a motion in arrest of judgment to contest the constitutionality of the statute under which he was prosecuted, that case long-since has been overruled implicitly by our subsequent decisions holding that such an attack “must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury.”
Brackett v. State,
227 Ga. 493 (2) (181 SE2d 380) (1971). We have consistently adhered to this requirement that a constitutional challenge must be made as soon as possible and certainly before the return of the guilty verdict. See
Kolokouris v. State,
supra at 597 (1);
Lacey v. State,
270 Ga. 37 (1) (507 SE2d 441) (1998). These latter cases constitute the controlling authority. See
Hall v. Hopper,
234 Ga. 625, 629 (3) (216 SE2d 839) (1975). Thus, the issue must be raised “either in pleadings, objections to evidence, or in some other appropriate way pending the trial. [Cits.]”
Woods v. State,
222 Ga. 321 (1) (149 SE2d 674) (1966). Because Hardeman gambled on an acquittal and waited to challenge the constitutionality of
Transferred to the Court of Appeals.
All the Justices concur.