State v. GreenState v. Green
Thе state appeals from the trial court’s order vacating Charlton Green’s ten-year-old sodomy conviction. Because Green was not entitled to such relief, we reverse.
When a question of law is at issue, as here, we review the trial court’s ruling de novo and reverse if the court committed legal error. 1
In 1997, Green pled guilty to sodomy and other offenses and was sentenced as a first offender, which sentence included probation. In January 1999, after violating the terms of his probation, Green was conviсted of and sentenced for sodomy and other offenses. Green was then subject to the sexual offender registration statute. 2
In September 1999, Green filed a “Motion to Terminate Sentence or Modify Sentence In the Alternative,” arguing that because the sodomy statute 3 had been held unconstitutional in Powell v. State, 4 the sentence for that offense should be terminated or modified to remove all conditions of probation. The trial court found Powell inapplicable and denied the motion.
In 2008, Green was chargеd with and convicted of failure to register as a sexual offender.
5
He appealed from that conviction, challenging the sufficiency of the evidence to suрport the conviction for failure to register; he argued that because substantive changes in the law had legalized the sexual conduct
In September 2009, Green filed in the trial court a “Motion to Pronounсe a Valid Judgment.” Therein, he sought an order vacating the underlying sodomy conviction, arguing that “it was entered in violation of his rights to due process of law and to privacy.” Green argued that the conduct underlying the sodomy conviction was protected рursuant to Lawrence v. Texas 8 and Powell 9 and that the sodomy conviction was the only offense that subjected him to thе sexual registration requirement. The state opposed and moved to dismiss the motion contending, inter alia, that a motion to vacate a judgment was not an appropriate remedy in a criminal case.
The trial court granted Green’s motion and denied the state’s motion to dismiss, holding that the court was authorized to vacate the conviction because the sentence was void. According to the trial cоurt, in punishing Green for conduct that was no longer criminal, the court had imposed a рunishment that the law does not allow.
1. Regardless of the nomenclature, Green’s motiоn sought to vacate his criminal conviction. 10 However, because a motion tо vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case, 11 Green was not authorized to seek relief from his criminal conviction pursuant to such a motion. 12 His motion should have been dismissed. 13
Contrary to Green’s argumеnt, the court was not authorized by Chester v. State 14 to grant the motion. The division of Chester that was not overruled by Harper v. State 15 allows a trial court to correct a void sentence at any time. 16 Green moved the trial court to vacate the conviction (which the trial court did), not to correct the sentence. A claim challenging a conviction and a claim challenging the result ing sentenсe as void are not the same. 17 Green’s reliance on Chester is misplaced. The trial court erred in granting the motion. 18
2. In light of our holding in Division l,
19
we need not address the state’s assertion
Judgment reversed.
Notes
See
O’Neal v. State,
See OCGA § 42-1-12.
OCGA § 16-6-2 (a).
See
Green v. State,
Id. at 211-212 (1).
Id. at 213 (1).
Supra.
See
Roberts v. State,
Roberts,
supra;
Williams v. State,
Harper v. State,
See Roberts, supra; Brundidge, supra.
Supra.
Chester, supra at 162 (1); see Harper, supra at 217-218 (1) (overruling Division 2 of Chester, which had authorized a defendant to move to have a judgment of conviction declared void pursuant to OCGA § 17-9-4), and n. 1 (noting that Division 1 of Chester was correctly decided, and that the only remedy fоr asserting the right to challenge a judgment of conviction as void under OCGA § 17-9-4 is one of the three listed statutory procedures).
Williams,
supra,
See Harper, supra at 218 (1), (2).
Supra.