GA Court of Appeals Reinstates Loitering Conviction

Initially, the trial court granted the defendant a new trial in response to his claim that the accusation was defective. The Court of Appeals, however, held that the trial court erred in addressing the issue in a motion for new trial because it should have been raised in either a pretrial general demurrer or post-conviction motion in arrest of judgment.

Graves was found guilty of “loitering or prowling” by masturbating while driving a motor vehicle in a residential area. The State contended that Graves violated the loitering statute by being “in a place…in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons…in the vicinity.”

The trial court granted Graves’ motion for new trial on the grounds that the State failed to show that his conduct rose to the level of loitering as defined by the statute.

The Court of Appeals stated that the motion for new trial was in substance a claim that the accusation was fatally defective. Specifically, Graves’ argument was that he could admit that he was “masturbating while driving a motor vehicle in a residential area” and still not be in violation of the statute. The Court pointed out that this type of claim alleges a defect in the accusation, not in the trial of the case.

The Court of Appeals held that this type of claim could only be made in a pretrial general demurrer or in a post-conviction motion in arrest of judgment. The Court stated that a motion for new trial was not an adequate substitute for a motion in arrest of judgment. Thus, the Court of Appeals reinstated Graves’ conviction and concluded that the trial court did not have the authority to grant him a new trial on this basis.

This case is a must-read for Georgia criminal defense attorneys, especially those who handle appeals. Due to the attorney’s failure to raise this claim in the proper post-conviction motion, Graves has been stripped of a favorable ruling by the trial court. He is now likely out of time to file a motion in arrest of judgment as those motions typically must be filed within 30 days of the conviction.