Richard Clark v. State ( 2014 )

Court of Appeals
of the State of Georgia
ATLANTA,__________________
September 09, 2014
The Court of Appeals hereby passes the following order:
A14A2222. RICHARD CLARK v. THE STATE.
In 2013, Richard Clark pled guilty to cocaine trafficking, obstruction of a law
enforcement officer, and possession of drug-related objects. He was sentenced to 25
years’ imprisonment and ordered to pay a $35,000 fine. Clark subsequently filed a
motion for an out-of-time appeal, which the trial court denied. Clark filed a direct
appeal from that ruling, but we dismissed his appeal as untimely. Clark v. State, Case
No. A14A1466 (dismissed May 5, 2014). On June 4, 2014, Clark filed a motion
styled “Extraordinary Motion in Arrest of Judgment” in which he argued that his plea
was involuntary and he received ineffective assistance of counsel. In the motion,
Clark specifically requested that the court declare his guilty plea void and “vacate his
convictions.” The trial court denied the motion, and Clark appeals. We, however,
lack jurisdiction.
The denial of a motion in arrest of judgment may be appealed directly. See Lay
v. State, 289 Ga. 210, 211 (2) (710 SE2d 141) (2011). In determining whether Clark
filed such a motion, we look to the substance of the motion rather than its
nomenclature. See id. at 212 n.2 (“In the event that a criminal defendant labels a
pleading as a ‘motion in arrest of judgment’ but it is in substance some other type of
motion, the appealability of the trial court’s ruling on the motion will turn on the
substance of the motion”).
Pursuant to OCGA § 17-9-61 (a), a motion in arrest of judgment is a means of
challenging a non-amendable defect appearing “on the face of the record or
pleadings.” See Smith v. State, 257 Ga. App. 468, 469 (571 SE2d 446) (2002). In his
motion, Clark did not allege any non-amendable defect on the face of the record.
Rather, his motion in substance is one seeking to set aside an allegedly void
conviction. As the Supreme Court has made clear, a post-conviction motion to vacate
an allegedly void criminal conviction is not one of the established procedures for
challenging the validity of a judgment in a criminal case, and an appeal from the trial
court’s ruling on such a petition should be dismissed. See Roberts v. State, 286 Ga.
532 (690 SE2d 150) (2010). For these reasons, Clark’s appeal is hereby DISMISSED.
See id.Court of Appeals of the State of Georgia
09/09/2014
Clerk’s Office, Atlanta,__________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.