Pope v. State

Full title: POPE v. THE STATE

Court: Court of Appeals of Georgia

Date published: Sep 5, 1967

157 S.E.2d 32 (Ga. Ct. App. 1967)

157 S.E.2d 32

Opinion

42930.

SUBMITTED JULY 10, 1967.

DECIDED SEPTEMBER 5, 1967.

Breaking and entering. Chatham Superior Court. Before Judge Harrison.

Harry F. Pope, pro se. Andrew J. Ryan, Jr., Solicitor General, Andrew J. Ryan, III, for appellee.

BELL, Presiding Judge.

After the term of court at which the prisoner was convicted and sentenced for breaking and entering an automobile, he filed a motion denominated "Motion extraordinary to vacate and set aside the judgment, conviction, and sentence" and contending that his indictment and conviction were void. If the detention is unlawful because the indictment and conviction are void, the prisoner's remedy is by a writ of habeas corpus. See McDonald v. State, 126 Ga. 536 ( 55 S.E. 235); Riley v. State, 107 Ga. App. 639 (2, 3) ( 131 S.E.2d 124); Whitus v. Georgia, 385 U.S. 545 ( 87 SC 643, 17 L.Ed.2d 599). A motion to set aside the verdict and judgment is not an appropriate remedy in a criminal case. Gravitt v. State, 165 Ga. 779 ( 142 S.E. 100); Claughton v. State, 179 Ga. 157 ( 175 S.E. 470); Waits v. State, 204 Ga. 295 ( 49 S.E.2d 492).

The judgment of the superior court denying the motion is

Affirmed. Pannell and Whitman, JJ., concur.

SUBMITTED JULY 10, 1967 — DECIDED SEPTEMBER 5, 1967.