Weatherbed appeals the trial court’s denial of his motion for an out-of-time appeal. For the reasons which follow, we reverse.
On October 20,1995, Weatherbed pled guilty to an accusation for malice murder and was sentenced to life in prison. He was represented by counsel and waived indictment in writing. On November 28, 1995, he filed a pro se “Motion for Extension to Appeal,” which was denied. Through counsel, he filed a motion for an out-of-time appeal on August 13, 1998, asserting that his trial counsel was ineffective for not informing him of his right to appeal, and the court denied the motion.
“The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may *737be so held in any court when it becomes material to the interest of the parties to consider it.” OCGA § 17-9-4. Because of the failure to indict Weatherbed, his conviction and sentence are void and must be reversed. OCGA § 17-7-70 (a) provides:
In all felony cases, other than cases involving capital felonies, . . . the district attorney shall have authority to prefer accusations, and such defendants shall be tried on such accusations, provided that defendants going to trial under such accusations shall, in writing, waive indictment by a grand jury.
OCGA § 17-7-70 (b) states that:
Judges of the superior court may open their courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty in misdemeanor cases and in felony cases, except those punishable by death or life imprisonment, when the judge and the defendant consent thereto. The judge may try the issues in such cases without a jury upon an accusation filed by the district attorney where the defendant has waived indictment and consented thereto in writing and counsel is present in court representing the defendant either by virtue of his employment or by appointment by the court.
Under the common law prior to the passage of OCGA § 17-7-70 and its predecessors, the superior court
had no jurisdiction to try, or accept a plea of guilty of one charged with a felony until the grand jury had returned an indictment. By [enactment of OCGA § 17-7-70] the court was given jurisdiction so to do in felony cases, but was expressly excluded therefrom as to those “punishable by death or life imprisonment.”1
Webb v. Henlery, 209 Ga. 447, 449 (74 SE2d 7) (1953) (overruled on other grounds, Garmon v. Johnson, 243 Ga. 855, 857 (257 SE2d 276) (1979)). After passage of the statute, the superior court remained *738without jurisdiction to dispose of a case involving a felony “punishable by death or life imprisonment” without an indictment, and when it does so, its judgment is void. Id.
Without an indictment, the trial court had no jurisdiction to accept Weatherbed’s plea and sentence him. “When a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed. [Cits.]” Darden v. Ravan, 232 Ga. 756, 758 (1) (208 SE2d 846) (1974). A void judgment may be attacked at any time, and this is not a situation in which the limitations on this rule might apply. See Bennett v. State, 268 Ga. 849, 850 (494 SE2d 330) (1998).
For the purposes of superior court jurisdiction under OCGA § 17-7-70, there is no distinction between “capital felonies”, and felonies “punishable by death or life imprisonment”; they have the same meaning. In general parlance, malice murder is a' capital felony. See Hayes v. State, 268 Ga. 809, 813 (7) (493 SE2d 169) (1997). Whether a felony is punishable by death has also been considered to be the determining factor in deciding if a felony is a “capital felony’ within the meaning of OCGA § 17-7-70 itself. Smith v. Wilson, 268 Ga. 38, 39 (1) (485 SE2d 197) (1997).
The State suggests that because it did not seek the death penalty against Weatherbed, he was not charged with a “capital felony’ within the meaning of OCGA § 17-7-70. This Court has previously stated that
“[i]n our view the expression ‘capital felony,’ when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same” [Cit.]
(Emphasis in original.) Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759) (1977). This is also the definition that has been used in examining the precursor to OCGA § 17-7-70. See Garmon, supra (deciding that armed robbery is not a “capital felony” within the meaning of the statute as the death penalty could no longer be imposed for this offense).
The fact that the State did not seek the death penalty does not take .this case outside the ambit of OCGA § 17-7-70. Under the definition used in Collins, malice murder is a capital felony because it belongs to a class of case in which the death penalty can, under certain circumstances, be imposed. OCGA §§ 16-5-1 (d); 17-10-30 (b). See, e.g., Pruitt v. State, 270 Ga. 745 (514 SE2d 639) (1999). The fact *739that the State has chosen not to pursue the death penalty does not change the class of case to which it belongs. Further, such choice is not dispositive in any event; although the State did not seek the death penalty when Weatherbed was sentenced under the accusation, the death penalty could still be sought in this (or a similar) case, as the State is not necessarily precluded from seeking the death penalty should the defendant be indicted. See Griffin v. State, 266 Ga. 115, 119-120 (3) (464 SE2d 371) (1995).
The State’s argument that Weatherbed freely and voluntarily consented to the procedure and waived his right to indictment, even if true, is irrelevant. Parties cannot, by their consent, confer subject matter jurisdiction on a court that does not otherwise have it. Gray v. Gray, 229 Ga. 460, 461 (192 SE2d 334) (1972).
The case is returned to the superior court for proceedings consistent with this opinion.
Judgment reversed with direction.
All the Justices concur, except Benham, C. J, who concurs specially.The statute discussed in Webb referred to “felony cases other than capital felonies” and “felony cases except those punishable by death or life imprisonment” in separate sentences. This is repeated with little change in the current statute; the exclusion from jurisdiction is stated for “cases involving capital felonies” in OCGA § 17-7-70 (a), with a later reference to “felony cases, except those punishable by death or life imprisonment” in OCGA § 17-7-70 (b).