☢ test - Í

(March 4, 2013). Thompson v. State, 286 Ga. 889, 692 S.E.2d 379 (March 29, 2010). In defendant’s capital murder trial, defendant’s attempt to file a “second amended motion for new trial” couldn’t be treated as a motion in arrest of judgment because not timely filed. “‘ A motion in arrest of judgment must be filed within the term of court in which the judgment was rendered. OCGA § 17-9-61(b),’” quoting Dasher v. State , 285 Ga. 308, 676 S.E.2d 181 (2009). Accord, Howard v. State , 289 Ga. 207, 710 S.E.2d 761 (May 16, 2011); Lay v. State , 289 Ga. 210, 710 S.E.2d 141 (May 16, 2011); Myers v. State , 311 Ga.App. 668, 716 S.E.2d 772 (September 14, 2011) (motion in arrest of judgment filed five years after judgment was untimely); Thomas v. State , 291 Ga. 18, 727 S.E.2d 123 (April 24, 2012) (motion in arrest of judgment filed 11 years after judgment was untimely); Andrade v. State , 319 Ga.App. 75, 733 S.E.2d 474 (October 24, 2012); Henderson v. State , 320 Ga.App. 553, 740 S.E.2d 280 (March 20, 2013); Wheeler v. State , 295 Ga. 118, 757 S.E.2d 867 (April 22, 2014). Grogan v. State, 297 Ga.App. 251, 676 S.E.2d 764 (March 17, 2009). Trial court properly used defendant’s prior plea of guilty to family violence battery in aggravation of sentence despite defendant’s claim that the plea was based on a void indictment (for failing to allege the relationship necessary to establish family violence); defendant’s contention should have been raised in a motion in arrest of judgment or habeas petition. “‘When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and ... no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered ..., the accused's proper remedy is a motion in arrest of judgment or habeas corpus.’ McKay v. State, 234 Ga.App. 556, 559(2) (507 S.E.2d 484) (1998). See also Harris v. State, 258 Ga.App. 669, 671(1) (574 S.E.2d 871) (2002) (‘[a] motion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict’). Therefore, as Grogan failed to challenge the indictment to which he pleaded guilty, his remedy is so limited.” Defendant’s contention here could have been brought by motion in arrest of judgment, but not timely brought within same term of court. Accord, Shelton v. State , 307 Ga.App. 599, 705 S.E.2d 699 (January 24, 2011); Andrade v. State , 319 Ga.App. 75, 733 S.E.2d 474 (October 24, 2012) (claim that indictment was void for failing to set out essential element of offense couldn’t be made for first time on appeal; must instead be brought by timely motion in arrest of judgment or habeas petition); Smith v. State , 298 Ga. 487, 782 S.E.2d 17 (January 19, 2016). Atkins v. State, 291 Ga.App. 863, 663 S.E.2d 286 (June 10, 2008). Indictment was issued against Atkins and Padgett, charging only Padgett in one count and charging only Atkins in the other 18 counts. Later, in a document entitled only “State of Georgia v. Barbara Padgett,” the trial court purported to nolle pros the original indictment because it “has been reaccused.” Both the nolle pros and the new indictment only referenced Padgett. At trial on the original indictment, Atkins’s counsel moved to dismiss or in arrest of judgment, contending that the nolle pros order ended the prosecution under the original indictment. Held, trial court properly denied motion to dismiss. “Atkins argues that the trial court should have ignored the style of the order (State v. Padgett) and considered only the body of the order (indictment 05CR768A dismissed), because ‘[u]nder our rules of pleading, substance, not mere nomenclature, controls.’ State v. Bell, 274 Ga. 719(1) (559 S.E.2d 477) (2002). But to consider the substance of the pleading, we must look at both the style and the body. … In this case, the only way to interpret the pleading as Atkins does would require ignoring the style of the pleading entirely and looking only at the body. Focusing on one part to the exclusion of the other is not considering substance over mere nomenclature; to consider the substance of this document both parts must be taken into account.” Dowdell v. State, 278 Ga.App. 142, 628 S.E.2d 226 (March 8, 2006). Indictment charged defendant with possession of “a firearm ... during the commission of a felony, to wit: armed robbery, which is a theft from a building.” Held, trial court properly denied defendant’s motion in arrest of judgment based on the erroneous description of armed robbery. “ Although the indictment was not perfect in form, it was not rendered void because Dowdell was not explicitly informed that armed robbery is a crime ‘against or involving the person of another. ’ Count 3 of the indictment sufficiently informed Dowdell of the charge asserted against him and protected him from subsequent prosecution for the same crime. [Cit.] We conclude that the trial court did not err by denying Dowdell’s motion in arrest of judgment or motion for new trial on this issue. [Cit.]” Fleming v. State, 276 Ga.App. 491, 623 S.E.2d 696 (November 21, 2005). “Fleming’s argument that the indictment failed to allege the essential elements of aggravated assault is cognizable as a motion in arrest of judgment. ‘However, a motion in arrest of judgment must be filed within the same term of court in which the judgment was entered, and therefore, [Fleming]’s motion is untimely.’ Wright v. State, 277 Ga. 810, 811 (596 S.E.2d 587) (2004).” Accord, Johnson v. State , 281 Ga.App. 401, 636 S.E.2d 124 (August 31, 2006); Haupt v. State , 290 Ga.App. 616, 660 S.E.2d 383 (March 5, 2008) (challenge to alleged defective indictment should have been made by motion in arrest of judgment, not motion for