WILTFANG v. STATE (2026)

Richard Wiltfang appeals from the denial of his motion in arrest of judgment. For the reasons that follow, we affirm.

1. At the outset, we must first determine our jurisdiction to entertain this appeal. “An appellate court has a duty to question its jurisdiction in any case in which its jurisdiction is in doubt.” Hall v. State, 282 Ga. 294, 295, 647 S.E.2d 585 (2007). The State argues that jurisdiction is not proper because Wiltfang “failed to file a motion in arrest of judgment prior to filing his [initial] notice of appeal before this Court ․ [and t]hus, his remedy is to pursue review through a habeas corpus proceeding.” We disagree given the circumstances of this case.

(a) Procedural facts. This is the second appearance of this case before our Court. The record shows that Wiltfang was convicted in April 2023 of homicide by vehicle (reckless driving), involuntary manslaughter, driving under the influence (per se), driving under the influence (less safe, alcohol), reckless driving, and making a false statement to a law enforcement officer. He filed a notice of appeal of these convictions in May 2023. Among other things, Wiltfang argued in his appellate brief that the indictment charging him with reckless driving (Count Six) and making a false statement to a police officer (Count Seven) “fail[ed] to allege a crime and [were] void.” While his appeal was pending, Wiltfang filed a timely motion in arrest of judgment, raising the exact same arguments discussed above: Counts Six and Seven of the indictment “fail[ed] to allege a crime and [were] void.”

On appeal, this Court “decline[d] to address these issues” because the record showed that Wiltfang: (i) failed to obtain a ruling from the trial court on his general demurrer and, therefore, waived his right to challenge the indictment, see LaFontaine v. State, 269 Ga. 251, 254, 497 S.E.2d 367 (1998), disapproved on other grounds by McCoy v. State, 303 Ga. 551, 814 S.E.2d 319 (2018); and (ii) “failed to file a motion in arrest of judgment prior to filing his notice of appeal before this Court.” Wiltfang v. State, A24A0046, slip op. at 12-13 (Ga. App. July 2, 2024) (unpublished). This Court affirmed Wiltfang's convictions on all other grounds. Id. at 2.

Upon remittitur from our Court, the trial court pretermitted the question of whether the court had jurisdiction to entertain Wiltfang's timely motion in arrest of judgment or whether his arguments regarding the indictment could only be reviewed through a habeas corpus proceeding and denied Wiltfang's motion in arrest of judgment on the merits.¹ Wiltfang appeals this ruling.

The question before us is whether the trial court had jurisdiction to consider Wiltfang's timely motion in arrest of judgment given the procedural posture of the case or whether the trial court's order is a nullity — and this appeal subject to dismissal — because Wiltfang should have filed a habeas corpus proceeding. We conclude that the trial court had jurisdiction given the circumstances of the case and that Wiltfang's appeal is properly before this Court.

(b) Challenges to a defective indictment. “In Georgia, a defendant has a right to be tried upon an indictment which is perfect in form and substance. However, this right can, under certain circumstances, be waived if a defendant fails to timely challenge the indictment.” McKay v. State, 234 Ga. App. 556, 558, 507 S.E.2d 484 (1998). There are a number of ways to challenge an indictment. Typically, a challenge is made by demurring to the indictment. “A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” (Citation and punctuation omitted.) Id.

While a special demurrer is waived if not raised before a conviction on the merits of the indictment, a general demurrer may be raised “after verdict by a motion in arrest of judgment even if there was no earlier objection.” (Citation and punctuation omitted.) McKay, 234 Ga. App. at 559, 507 S.E.2d 484. Such a motion in arrest “asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime.” (Citation and punctuation omitted.) Id.

When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused's proper remedy is a motion in arrest of judgment or habeas corpus.

Williams v. State, 162 Ga. App. 350, 351, 291 S.E.2d 425 (1982). If a defendant does not properly claim in the trial court that an accusation or indictment is absolutely void, it can be reviewed on appeal only through a habeas corpus proceeding. McKay, 234 Ga. App. at 560, 507 S.E.2d 484.

(c) Motion in arrest of judgment. Under OCGA § 17-9-61(b), “[a] motion in arrest of judgment must be made during the term at which the judgment was obtained.” It is well settled that when a notice of appeal is filed while a motion in arrest of judgment is pending, this Court lacks jurisdiction over the appeal. Oladunni v. State, 356 Ga. App. 861, 861-62, 849 S.E.2d 702 (2020) (holding that when a motion in arrest of judgment is pending in the trial court, the trial court retains jurisdiction to rule on the merits of the motion, the defendant's notice of appeal has not ripened, “and the attempted appeal in this [C]ourt must be dismissed”) (citation and punctuation omitted). It is equally well settled that if the defendant raises an objection to the form of the indictment in this Court, and no general demurrer or motion in arrest of judgment was filed in the trial court, there is nothing for us to review on appeal, and the defendant's assertion can be reviewed on appeal only through a habeas corpus proceeding. Thompson v. State, 370 Ga. App. 359, 365-66, 897 S.E.2d 505 (2024); accord McKay, 234 Ga. App. at 560, 507 S.E.2d 484. The question that has not been settled is the proper procedure to employ when a defendant files a notice of appeal and subsequently files a timely motion in arrest of judgment.

Although both parties asserted in the prior appeal and the trial court noted in its order on Wiltfang's motion in arrest of judgment that, because a notice of appeal had previously been filed in the trial court, the trial court lacked jurisdiction to entertain the motion in arrest of judgment until the appeal in this Court was concluded, a thorough review of the applicable statutes and case law leads us to conclude that a trial court does not lack jurisdiction under these circumstances.²

OCGA § 5-6-38(a) provides that a notice of appeal “shall be filed within 30 days after entry of the appealable decision or judgment complained of [except] when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been file[d].” These particular motions extend the time for filing a notice of appeal, and we conclude that the filing of these motions does not divest the trial court of jurisdiction. Although this Court has not located case law addressing the exact issue before us in the context of a motion in arrest of judgment, this Court has dealt with the same issue in the context of a motion for new trial and a motion for judgment notwithstanding the verdict, and we see no reason to treat the post-judgment filing of a timely motion in arrest of judgment any differently than the filing of a timely motion for new trial or motion for judgment notwithstanding the verdict.

Our Supreme Court and this Court repeatedly have ruled in cases where a defendant files a timely motion for new trial after filing a notice of appeal that the notice of appeal is premature and the trial court retains jurisdiction to rule on the motion for new trial:

Even though a notice of appeal may divest the trial court of jurisdiction, we conclude that such divestiture does not become effective during the period in which a motion for new trial may be filed. In the event a motion for new trial is timely filed as provided in OCGA § 5-5-40 (Code Ann. § 70-301), the effectiveness of the divestiture of jurisdiction is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.

Housing Auth. of Atlanta v. Geeter, 252 Ga. 196, 197, 312 S.E.2d 309 (1984); accord Jones v. State, 309 Ga. App. 149, 709 S.E.2d 593 (2011); see also Brown v. State, 208 Ga. App. 726, 727, 431 S.E.2d 726 (1993) (“Where a notice of appeal and a motion for new trial are timely filed, even though the former precedes the latter, the notice of appeal is rendered premature until disposition of the motion for new trial.”). The same rule has been applied when a defendant files a notice of appeal prior to filing a timely motion for judgment notwithstanding the verdict. See Wooten v. Williams, 342 Ga. App. 511, 512-13, 803 S.E.2d 782 (2017) (extending above rule to motions for judgments notwithstanding the verdict).

We conclude that this rule applies equally as well to motions in arrest of judgment and controls the instant case, in which the notice of appeal was prematurely filed and the motion in arrest of judgment was timely filed thereafter. Under such circumstances, the trial court's jurisdiction to hear the motion was preserved, and this Court should have remanded the case for the trial court to consider Wiltfang's motion in arrest of judgment. See Jones, 309 Ga. App. at 150, 709 S.E.2d 593. Compare Atkinson v. State, 170 Ga. App. 260, 262, 316 S.E.2d 592 (1984) (holding that remand to address motion for new trial was not required because appellant did not apprise this Court that he had filed a motion for new trial in the trial court subsequent to the filing of his notice of appeal and did not file a stay of the direct appeal in this Court). We do not extend the Atkinson approach to the facts presented here because (i) both parties in the prior appeal noted that Wiltfang had filed a timely motion in arrest of judgment after he had filed his notice of appeal, (ii) this Court was under the mistaken impression that the trial court lacked jurisdiction to address Wiltfang's motion in arrest of judgment before the appeal had concluded, (iii) this Court declined to address the indictment issues raised by Wiltfang, and (iv) Wiltfang would otherwise be denied the opportunity to pursue the merits of issues he timely raised in a motion in arrest of judgment. See Jones, 309 Ga. App. at 150 n. 6, 709 S.E.2d 593 (declining to utilize the Atkinson approach to the fact presented in that case “because the trial court affirmatively declined to address [the defendant's] motion for new trial, and [the defendant] would otherwise be denied the opportunity to pursue the merits of issues he timely raised in a motion for new trial”).

Given the procedural posture of this case, we conclude that the trial court had jurisdiction to consider Wiltfang's timely filed motion in arrest of judgment — which was not considered by our Court during the initial appeal — and we have jurisdiction to consider Wiltfang's appeal from the denial of his motion. We note, however, that generally the proper means of placing a defendant's timely-filed motion in arrest of judgment before this Court “would be to file a motion for a stay of the direct appeal with [this Court], and if the stay were denied, then to petition for writ of certiorari.” Geeter, 252 Ga. at 197, 312 S.E.2d 309.

2. Turning to the merits of this appeal, Wiltfang asserts in two separate enumerations of error that the trial court erred in denying his motion in arrest of judgment because Counts Six and Seven of his indictment did not sufficiently establish a crime. We disagree.

It is well settled that “[a] motion in arrest of judgment must be based upon a defect that the accused might otherwise have challenged by a timely general demurrer.” (Citation and punctuation omitted.) Poole v. State, 326 Ga. App. 243, 247, 756 S.E.2d 322 (2014). “A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime, and it should be granted only when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law.” (Citation and punctuation omitted.) Id. In other words,

the true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment.

(Citation and punctuation omitted.) Id. at 247-48 (2)(a), 756 S.E.2d 322. “An indictment is void to the extent it fails to allege all of the essential elements of the charged crime.” Clark v. State, 315 Ga. 423, 443, 883 S.E.2d 317 (2023). “An indictment is not void if it is sufficient to place the defendant on notice of the charges against him and enable him to prepare an intelligent defense.” (Citation and punctuation omitted.) Ashmore v. State, 323 Ga. App. 329, 332, 746 S.E.2d 927 (2013); accord Clark v. State, 302 Ga. App. 156, 157, 690 S.E.2d 466 (2010). In that same vein, “[a]n indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.” (Citation and punctuation omitted.) Bautista v. State, 305 Ga. App. 210, 213, 699 S.E.2d 392 (2010); accord Poole, 326 Ga. App. at 248, 756 S.E.2d 322; see also OCGA § 17-7-54(a) (“Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.”).

“A motion in arrest of judgment is an appropriate remedy, [only] when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law, and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict.” (Citation and punctuation omitted.) Jones v. State, 240 Ga. App. 484, 485, 523 S.E.2d 73 (1999); accord Robles v. State, 277 Ga. 415, 421, 589 S.E.2d 566 (2003) (holding that a trial court does not err in denying a motion in arrest of judgment “unless the alleged defects in the indictment [are] so great as to cause the indictment to be absolutely void”) (citation and punctuation omitted). “In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict.” Ashmore, 323 Ga. App. at 332, 746 S.E.2d 927; Pitts v. State, 260 Ga. App. 274, 276, 581 S.E.2d 306 (2003) (noting that when reviewing a trial court's decision on a motion in arrest of judgment this Court “must construe every presumption and inference in favor of the verdict”).

With these principles in mind, we turn to Wiltfang's specific arguments.

(a) Count Six. Wiltfang asserts that Count Six, charging him with reckless driving, failed to charge a crime because it did not sufficiently describe the act of the offense.³ Specifically, Wiltfang maintains that he could not be charged with reckless driving because the indictment did not allege that his manner of driving posed a risk to the general public; he asserts “there is no crime in the State of Georgia making riding on the exterior running boards an illegal act.” This enumeration of error lacks merit.

Count Six of his indictment charged Wiltfang with reckless driving in that he:

DID UNLAWFULLY DRIVE A GRAY TOYOTA TACOMA, A MOTOR VEHICLE, IN A RECKLESS MANNER IN RECKLESS DISREGARD OF THE SAFETY OF PERSONS AND PROPERTY BY DRIVING SAID VEHICLE WHILE MEGAN TWIST WAS STANDING ON THE EXTERIOR RUNNING BOARDS OF THE TRUCK, SAID ACTION CAUSING MEGAN TWIST TO FALL FROM THE SIDE OF THE TRUCK, WHICH RESULTED IN INJURIES TO MEGAN TWIST[.]

We conclude that this indictment language was sufficient to place Wiltfang on notice of the charges against him and enable him to prepare an intelligent defense. See Robles, 277 Ga. at 421, 589 S.E.2d 566.

The essential elements of the offense of reckless driving are set forth in OCGA § 40-6-390(a), which provides that “[a]ny person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” “The offense of reckless driving may be committed in a variety of ways, and whether a defendant's manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury.” (Citation and punctuation omitted.) Fouts v. State, 322 Ga. App. 261, 267, 744 S.E.2d 451 (2013). To establish a violation of the offense, the State must only show that the defendant “committed a specified act evidencing a reckless disregard for the safety of persons or property.” (Citation and punctuation omitted.) Holley v. State, 363 Ga. App. 107, 112, 871 S.E.2d 13 (2022). The State is not required to prove that the defendant intended to violate the law, but only that the defendant intended to commit an act that is prohibited by the statute evidencing a reckless disregard for the safety of persons or property. Id.; Smith v. State, 319 Ga. App. 164, 173, 735 S.E.2d 153 (2012) (“[T]o prove the offense of reckless driving, the State must show that the defendant committed a specified act evidencing a reckless disregard for the safety of persons or property[.]”). The “crucial language” that must be included in an indictment charging a defendant with reckless driving is that the defendant drove “with reckless disregard for the safety of persons or property[.]” (Citation and punctuation omitted.) Howard v. State, 252 Ga. App. 487, 488, 555 S.E.2d 884 (2001) (holding that an indictment charging a defendant with reckless driving included the crucial language that he drove “with reckless disregard for the safety of persons and property” and was therefore legally sufficient); cf. Heath v. State, 349 Ga. App. 84, 88-90, 825 S.E.2d 474 (2019) (finding that trial counsel provided ineffective assistance of counsel by failing to demur to a fatally defective indictment that did not include the crucial language that the defendant drove with reckless disregard for the safety of persons or property).

Here, Count Six of the indictment not only tracked the “crucial language” of OCGA § 40-6-390(a), but also contained other information that sufficiently placed Wiltfang on notice of the charge against him; specifically, the manner in which he allegedly violated the reckless driving statute. The count therefore contained the elements of the offense and apprised Wiltfang of the charges he must be prepared to answer at trial. Contrary to Wiltfang's assertion that he did not commit a crime because allowing Twist to ride on the exterior running boards was not illegal, as this Court noted in our prior opinion, “it is of no consequence whether driving a motor vehicle with someone standing on the running boards is illegal, so long as the act itself demonstrates a disregard for the victim's safety.” Wiltfang, A24A0046, slip op. at 14-15. “Accordingly, Count Six was legally sufficient, and the trial court properly denied Wiltfang's motion in arrest of judgment.” Howard, 252 Ga. App. at 488-89, 555 S.E.2d 884. It necessarily follows that, despite Wiltfang's assertion, Counts Five and Thirteen, predicated on the reckless driving charge, also are legally sufficient.⁴

(b) Count Seven. Wiltfang asserts that Count Seven, charging him with making a false statement, failed to charge a crime because, according to Wiltfang, he “could admit that he had not consumed alcohol on the evening of November 26, 2016 and not be guilty of giving a false statement as to whether he had consumed alcohol in general on said date[.]”⁵ (Emphasis in original.) This enumeration of error also lacks merit.

Count Seven of his indictment charged Wiltfang with making a false statement in that he did:

KNOWINGLY AND WILLFULLY MAKE A FALSE STATEMENT TO OFFICER EDWARD HALL, IV IN AN INVESTIGATION OF INJURIES SUSTAINED BY MEGAN TWIST, A MATTER WITHIN THE JURISDICTION OF BRUNSWICK POLICE DEPARTMENT, A DEPARTMENT OF THE CITY OF BRUNSWICK GOVERNMENT, TO WIT: THE ACCUSED TOLD SAID OFFICER THAT HE HAD NOT CONSUMED ANY ALCOHOL ON THE EVENING OF NOVEMBER 26, 2016, WHEN IN FACT HE KNEW THAT HE HAD CONSUMED ALCOHOL ON NOVEMBER 26, 2016[.]

We conclude that this indictment language was sufficient to place Wiltfang on notice of the charges against him and enable him to prepare an intelligent defense. See Robles, 277 Ga. at 421, 589 S.E.2d 566.

OCGA § 16-10-20 provides that an individual is guilty of making a false statement if he knowingly and willfully “makes a false, fictitious, or fraudulent statement or representation ․ in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state[.]” Here, Count Seven of the indictment not only tracked the language of OCGA § 16-10-20, but also contained additional information that sufficiently placed Wiltfang on notice of the charge against him; specifically, the false statement made by him. Count Seven “alleged the elements of the charged offense[ ] in the language of the Code section[ ] under which [Wiltfang] was convicted, thereby adequately informing [Wiltfang] of the charges he faced and enabling him to prepare a defense to [the] charge[ ].” Clark, 302 Ga. App. at 157, 690 S.E.2d 466; see also State v. Grant, 274 Ga. 826, 828, 561 S.E.2d 94 (2002) (reversing trial court's grant of a motion in arrest of judgment because “the indictment informed [the defendant] of the charges against him so that he could present his defense at trial and not be surprised by the evidence against him”). Furthermore, Wiltfang could not have admitted the allegations of the indictment without admitting that he was guilty of the crime of making a false statement. It follows that the indictment was not void, and the trial court did not err in denying Wiltfang's motion in arrest of judgment. See Poole, 326 Ga. App. at 248, 756 S.E.2d 322.

Judgment affirmed.

FOOTNOTES

1.   The court's order also denied Wiltfang's “Motion to Correct or Reduce Sentence” on one of his convictions. On appeal, Wiltfang does not allege as error the trial court's denial of that motion.

2.   We acknowledge that our prior opinion likewise indicated in a footnote that the trial court was deprived of jurisdiction to entertain Wiltfang's motion in arrest of judgment during the pendency of the appeal. Wiltfang, A24A0046, slip op. at 12 n. 5. We note, however, that the case cited in support of that footnote, Martin v. State, 369 Ga. App. 193, 195, 892 S.E.2d 826 (2023), involved a revocation of probation case where the notice of appeal clearly acted as a supersedeas, not one of the three motions specifically delineated by statute to extend the time for filing a notice of appeal, as discussed more fully above. Id. Moreover, our prior opinion was unpublished, and “[a] decision that is not officially reported is neither physical nor binding precedent[.]” Court of Appeals Rule 33.2(b). While such an opinion “shall be binding in all subsequent proceedings in that case as provided by OCGA § 9-11-60(h),” the comment in our footnote was mere dicta, and we decline to give force to this dicta because it was not necessary to resolve the issue before the Court and its premise is without statutory basis. See Zepp v. Brannen, 283 Ga. 395, 397, 658 S.E.2d 567 (2008); Fed. Trust Bank v. C. W. Matthews Contracting Co., 312 Ga. App. 200, 204, 718 S.E.2d 63 (2011).

3.   The jury convicted Wiltfang on this count, and this Court affirmed the conviction, concluding that evidence showing Wiltfang intentionally drove his truck while under the influence of alcohol with the victim standing on the running board was sufficient to support the jury's determination that Wiltfang drove in a reckless manner. Wiltfang, A24A0046, slip op. at 13-15.

4.   In a single sentence devoid of any argument or citation to authority, Wiltfang expands his enumeration of error in his appellate brief — “The trial court erred in denying Appellant's Motion in Arrest of Judgment as to Count Six of the indictment for finding that Count Six sufficiently established a crime, Reckless Driving, under Georgia law” — by stating, “As Counts 5 and 13 are predicated on the offense of Count 6, those counts fail as a matter of law as well.” Count 5 charged Wiltfang with homicide by vehicle in the first degree based on reckless driving, and Count 13 charged him with involuntary manslaughter based on driving while the victim was standing on the vehicle running boards. Pretermitting whether Wiltfang preserved or properly raised this argument, the argument is precluded by our conclusion that Count Six (charging Wiltfang with reckless driving) was legally sufficient.

5.   The jury convicted Wiltfang on this count, and this Court affirmed the conviction, concluding that Wiltfang's argument that he had consumed alcohol in the afternoon but not in the evening was belied by the record and the evidence supported an inference that Wiltfang consumed alcohol in the evening of the incident and made a false statement to police when he denied doing so. Wiltfang, A24A0046, slip op. at 15-16.

Hodges, Judge.

McFadden, P. J., and Pipkin, J., concur.