2020 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 13 - Prosecution of Traffic Offenses
Article 2 - Arrests, Trials, and Appeals
§ 40-13-33. Limitation on Habeas Corpus Challenge of Misdemeanor Traffic Conviction

1. Any challenge to a misdemeanor conviction of any of the traffic laws of this state or the traffic laws of any county or municipal government which may be brought pursuant to Chapter 14 of Title 9 must be filed within 180 days of the date the conviction becomes final.
2. Any challenge to a conviction specified in subsection (a) of this Code section which became final before March 28, 1986, must be filed within 180 days following March 28, 1986.
3. When the commissioner of driver services is named as the respondent, all such petitions must be brought in the Superior Court of Fulton County.
4. Failure to file the challenge within the time prescribed in this Code section shall divest the court of jurisdiction.

(Code 1981, §40-13-33, enacted by Ga. L. 1986, p. 444, § 1; Ga. L. 1992, p. 2785, § 29; Ga. L. 2000, p. 951, § 7A-3; Ga. L. 2005, p. 334, § 22-4/HB 501.)

- Pursuant to Code Section 28-9-5, in 1987, "March 28, 1986" and "following March 28, 1986" were substituted for "the effective date of this Code section" and "of the effective date of this Code section", respectively, in subsection (b).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A § 40-13-33 is not unconstitutional as a suspension of the writ of habeas corpus. Earp v. Brown, 260 Ga. 215, 391 S.E.2d 396, cert. denied, 498 U.S. 940, 111 S. Ct. 346, 112 L. Ed. 2d 310 (1990).

Construed with § 17-9-4. - O.C.G.A § 40-13-33 creates a limited and procedural exception to the general rule of law codified at O.C.G.A. § 17-9-4 that a defendant can collaterally attack void judgments at any time; this statute does not permit a defendant, beyond 180 days after the defendant's convictions, to attack the underlying convictions leading to the revocation of the defendant's driver's license under O.C.G.A. § 40-5-58. Earp v. Brown, 260 Ga. 215, 391 S.E.2d 396 (1990), cert. denied, 498 U.S. 940, 111 S. Ct. 346, 112 L. Ed. 2d 310 (1990).

- O.C.G.A § 40-13-33 applies to all challenges to final convictions of misdemeanor traffic offenses, not just to challenges by means of petition for a writ of habeas corpus. Brown v. Earp, 261 Ga. 522, 407 S.E.2d 737 (1991).

- Procedural limitations of subsections (a) and (b) of O.C.G.A § 40-13-33 neither suspend the writ of habeas corpus, nor cause a court to dismiss an action for habeas without consideration of the equities presented. Rather, the statute provides that in a narrowly defined class of cases - those in which a petitioner who is not in custody seeks habeas relief from a misdemeanor traffic conviction - the petition for habeas corpus must be filed within 180 days of conviction. As such, the statute imposes a permissible procedural restriction on a limited group of cases. Earp v. Boylan, 260 Ga. 112, 390 S.E.2d 577 (1990).

- The 180-day limitation is not restricted only to habeas corpus challenges actually brought under O.C.G.A. Ch. 14, T. 9, but applies to "any challenge" (except those categories of habeas corpus challenges excluded for obvious constitutional reasons by the Supreme Court's holding in Earp v. Boylan, 260 Ga. 112, 390 S.E.2d 577 (1990)) which may have been brought pursuant to that chapter. Walker v. State, 199 Ga. App. 701, 405 S.E.2d 887, cert. denied, 199 Ga. App. 907, 405 S.E.2d 887 (1991).

- Defendant's challenge to the defendant's misdemeanor traffic convictions by a motion to vacate was not an appropriate remedy and the defendant's motion could not be construed as a motion for arrest of judgment or other alternative motion because the motion was untimely under O.C.G.A. § 40-13-33(a); the 180-day limit applied to any challenge that could have been brought by habeas corpus, and suspension of a driver's license interfered with a liberty interest. Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017), cert. denied, No. S18C0239, 2018 Ga. LEXIS 236 (Ga. 2018).

Defendant's failure to timely assert a challenge to a prior guilty plea to a misdemeanor traffic conviction barred the defendant from collaterally attacking the voluntariness of the plea. Grant v. State, 231 Ga. App. 868, 501 S.E.2d 27 (1998).

- O.C.G.A. § 40-13-33 divested the trial court of jurisdiction to consider any challenge to a traffic conviction not made within 180 days of the conviction, and applied to all challenges to final convictions of misdemeanor traffic offenses; a trial court did not err by dismissing the defendant's motion to reopen the defendant's case when the motion was filed more than a year after the defendant's conviction for various misdemeanor traffic violations. Jeter v. State, 269 Ga. App. 266, 603 S.E.2d 783 (2004).