Summary
holding that, when constitutional issues were not timely raised, “those challenges must be deemed waived on appeal” and, absent some other basis for this Court's jurisdiction, the appeal must be transferred to the Court of Appeals
Summary of this case from Brinkley v. StateOpinion
S02A0227.
DECIDED: APRIL 15, 2002.
OCGA § 16-13-31; constitutional question. Gwinnett Superior Court. Before Judge Conner.
Clark Towne, Wystan B. Getz, for appellant.
Daniel J. Porter, District Attorney, Gregory D. McKeithen, Donald Geary, Assistant District Attorneys, for appellee.
Appellant Edwin Perez-Castillo appeals his conviction for trafficking in more than 50 pounds of marijuana. Following the jury's guilty verdict, the trial court entered its judgment of conviction and sentence. Appellant then filed alternative motions for a new trial or to arrest the judgment. In his motion to arrest the judgment, appellant raised for the first time several constitutional challenges to the criminal statute under which he was convicted, OCGA § 16-13-31. The trial court denied both of appellant's post-conviction motions, and he appeals to this Court, seeking to invoke our exclusive jurisdiction over unresolved questions surrounding the constitutionality of a statute.
Ga. Const. (1983), Art. VI, Para. VI, Sec. II.
The State urges that this Court is without jurisdiction to consider this appeal, and that it must be transferred to the Court of Appeals. We agree. It is well-established that a criminal defendant may not initiate a constitutional attack against a statute in either a motion for a new trial or a motion to arrest the judgement. A constitutional attack on a state statute "`must be made at the first opportunity, and it is too late to raise such a question after a guilty verdict has been returned by the jury.'" Because appellant waited until filing his motion to arrest the judgment — well after his conviction — to raise his constitutional challenges to section 16-13-31, those challenges must be deemed waived on appeal.
Kolokouris v. State, 271 Ga. 597 ( 523 S.E.2d 311) (1999).
Hardeman v. State, 272 Ga. 361 ( 529 S.E.2d 368) (2000).
Hardeman, 272 Ga. at 362, quoting Brackett v. State, 227 Ga. 493 ( 181 S.E.2d 380) (1971).
There being no other issues germane to this appeal that vest it within this Court's jurisdiction, it is hereby transferred to the Court of Appeals.
Transferred to the Court of Appeals. All the Justices concur.
DECIDED APRIL 15, 2002.