FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 15, 2021
In the Court of Appeals of Georgia
A21A0383. WEAVER v. THE STATE.
PHIPPS, Senior Appellate Judge.
In 2017, a jury found Jacob Weaver guilty of aggravated assault with a deadly
weapon and possession of a firearm during the commission of a felony, and we
affirmed his convictions in an unpublished opinion. See Weaver v. State, 344 Ga.
App. XXX (Case No. A17A2103, Feb. 23, 2018). Weaver subsequently filed an
extraordinary motion for new trial, which the trial court dismissed. Weaver appeals
this ruling. For reasons that follow, we affirm.
1. As an initial matter, we must consider whether we have jurisdiction to
address Weaver’s appeal. See Nelson v. State, 356 Ga. App. 449, 450 (1) (847 SE2d
632) (2020) (appellate court has a duty to inquire into its jurisdiction). Under OCGA
§ 5-6-35 (a) (7), a litigant must comply with the discretionary appeal statute for
“[a]ppeals, when separate from an original appeal, from the denial of an extraordinary
motion for new trial[.]” Here, the trial court dismissed rather than denied Weaver’s
extraordinary motion for new trial. Accordingly, this appeal does not come within the
ambit of the discretionary application statute. See OCGA § 5-6-30 (the Appellate
Practice Act must be construed liberally).
Our inquiry, however, does not end here. In Harper v. State, 286 Ga. 216 (686
SE2d 786) (2009), the Supreme Court held that “a petition to vacate or modify a
judgment of conviction is not an appropriate remedy in a criminal case.” Id. at 218
(1). Because the remedy sought was improper, the Supreme Court concluded that the
appeal itself was subject to dismissal. Id. at 218 (2). Here, Weaver filed an
extraordinary motion for new trial rather than a petition to vacate his conviction, but
the Supreme Court recently addressed the circumstances under which an
extraordinary motion for new trial is an appropriate remedy.
In Mitchum v. State, 306 Ga. 878 (834 SE2d 65) (2019), the Supreme Court
determined that an extraordinary motion for new trial is not an appropriate vehicle in
which to raise constitutional claims that are cognizable in a habeas corpus
proceeding. Id. at 885 (1) (c). Because Mitchum raised constitutional claims that
should have been brought as a habeas corpus action, the Supreme Court ruled that his
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extraordinary motion for new trial should have been dismissed by the trial court. Id.
at 886-887 (2). The Supreme Court did not, however, address whether such cases also
should be dismissed at the appellate level. Id.
We believe dismissal is proper. The Supreme Court’s conclusion in Harper –
that a motion to vacate an allegedly void conviction is an improper mechanism in
which to collaterally attack a conviction – is echoed in Mitchum. See Harper, 286 Ga.
at 218 (1); Mitchum, 306 Ga. at 885 (1) (c). In Harper, the dismissal – either at the
trial or appellate level – essentially recognized the motion to vacate as a nullity. The
Supreme Court thus concluded that the appeal itself was subject to dismissal. See
Harper, 286 Ga. 218 (2) (because Harper was not entitled to file a motion to vacate
his criminal conviction, the appeal is subject to dismissal). We see no reason why this
principle should not also apply in the context of an improper extraordinary motion for
new trial since both involve a defendant attempting to utilize an improper mechanism
to challenge a conviction.
Accordingly, appeals from orders properly dismissing an extraordinary motion
for new trial on the ground that the claims should have been raised through habeas
corpus proceedings are subject to dismissal. To the extent that a trial court denies an
extraordinary motion for new trial on grounds other than constitutional grounds, an
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appeal of such an order requires compliance with the discretionary application statute.
See OCGA § 5-6-35 (a) (7).
Because we have not previously applied the reasoning from Harper in the
context of an order dismissing an extraordinary motion for new trial, we will exercise
our discretion and address Weaver’s appeal on the merits.
2. Under OCGA § 5-5-40 (a), “[a]ll motions for new trial, except in
extraordinary cases, shall be made within 30 days of the entry of the judgment on the
verdict or entry of the judgment where the case was tried without a jury.”
Extraordinary motions for new trial are not favored because such motions undermine
the finality of judgments. See Stinchcomb v. State, 308 Ga. 870, 873-874 (2) (843
SE2d 847) (2020). Thus, when a motion for new trial is filed beyond 30 days, some
good reason must be shown for the late filing. See OCGA § 5-5-41 (a). “Good reason
exists only where the moving party exercised due diligence but, due to circumstances
beyond [his] control, was unable previously to discover the basis for the claim [he]
now asserts.” Davis v. State, 353 Ga. App. 896, 897 (840 SE2d 128) (2020) (citation
and punctuation omitted).
As the Supreme Court recognized in Mitchum, an extraordinary motion for new
trial has, historically, been used to present newly discovered evidence that affects the
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question of a defendant’s guilt or innocence. Mitchum, 306 Ga. at 880 (1) (a); see also
Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980) (setting forth
conditions that must be satisfied to warrant granting an extraordinary motion for new
trial based on newly discovered evidence). But courts also have considered bases
other than newly discovered evidence. See, e. g., Crawley v. State, 151 Ga. 818 (108
SE 238) (1921) (unqualified juror); Harris v. State, 150 Ga. 680 (104 SE 902) (1920)
(improper communication with jurors during deliberations); Womack v. State, 353 Ga.
App. 801 (840 SE2d 41) (2020) (improper admissions of co-conspirator hearsay).
In Mitchum, the Supreme Court limited the types of claims that can be raised
in an extraordinary motion for new trial. It recognized that an extraordinary motion
for new trial is, as its name implies, an extraordinary remedy. Mitchum, 306 Ga. at
880-885 (1) (a), (c). Thus, an extraordinary motion for new trial is unavailable to
litigants who have a legal remedy through habeas corpus proceedings. Id. at 884-885
(1) (c). Because the litigant in Mitchum could have raised his constitutional claims
through a habeas corpus proceeding, the Supreme Court determined that an
extraordinary motion for new trial was not a proper vehicle for bringing such claims
and, thus, the motion was subject to dismissal. Id. at 885-888 (2).
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The trial court in this case relied on Mitchum in dismissing Weaver’s
extraordinary motion for new trial. We find no error. In his motion, Weaver argued
that: (1) substantive defects in the indictment created a fatal variance; (2) the trial
court erred in instructing the jury; (3) the verdict form was improper; and (4) he
received ineffective assistance of trial counsel. The trial court found that these
“enumerations of error speak to the alleged deprivation of [Weaver’s] constitutional
rights including due process, effective assistance of counsel, and a fair and impartial
jury.” Because such arguments could be raised through habeas corpus, the trial court
correctly concluded that Weaver is precluded from raising these arguments in an
extraordinary motion for new trial. See Mitchum, 306 Ga. at 885-888 (2); Milliken v.
Stewart, 276 Ga. 712, 713 (583 SE2d 30) (2003) (“[T]he habeas corpus court is the
appropriate judicial entity to consider both the ineffective assistance of counsel claim
and the underlying and connected trial error[.]”).
To avoid dismissal, Weaver argues that his claims of error stem from statutory
rather than constitutional violations. Regardless of how Weaver’s arguments are
characterized, he is not entitled to raise them through an extraordinary motion for new
trial. “The law is clear that any errors which could have been discovered through the
exercise of proper diligence cannot form the basis for an extraordinary motion for
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new trial.” Goodwin v. State, 240 Ga. 605, 606 (242 SE2d 119) (1978). Thus, issues
with the indictment, jury instructions, and verdict form – issues which should have
been apparent at the time of Weaver’s first appeal – cannot serve as the basis for an
extraordinary motion for new trial. See id.
Finally, Weaver suggests that the trial court erred in dismissing his
extraordinary motion for new trial because he may challenge a void conviction at any
time. Weaver is mistaken. The Supreme Court has made clear that a motion to vacate
or modify an allegedly void conviction is not an appropriate remedy in a criminal
case. Harper, 286 Ga. at 218 (1). Weaver cannot avoid the application of this
principle by filing an extraordinary motion for new trial rather than a motion to vacate
a void conviction. See Kilgore v. State, 325 Ga. App. 874, 874 (1) (756 SE2d 9)
(2014) (in construing pleadings, we look to the substance of the pleading rather than
its nomenclature).
For these reasons, an extraordinary motion for new trial was not a proper
vehicle for Weaver to pursue his claims. Accordingly, the trial court properly
dismissed the motion. See Mitchum, 305 Ga. at 885-888 (2); Davis, 353 Ga. App. at
898.
Judgment affirmed. McFadden, C. J., and Rickman, P. J., concur.
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