Restrictions on Ability of Courts to Change or Modify Traffic Law Sentences or Judgments

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  2. Georgia Code
  3. Motor Vehicles and Traffic
  4. Prosecution of Traffic Offenses
  5. Arrests, Trials, and Appeals
  6. Restrictions on Ability of Courts to Change or Modify Traffic Law Sentences or Judgments

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  1. No court having jurisdiction over cases arising out of the traffic laws of this state or the traffic laws of any county or municipal government shall change or modify a traffic law sentence or judgment rendered pursuant to a conviction, plea of guilty, or plea of nolo contendere after 90 days from the date of judgment, except for the purpose of correcting clerical errors therein, unless there is strict compliance with all of the following requirements:
    1. A motion to change or modify the sentence or judgment is made by the defendant to the court rendering the judgment;
    2. Notice, including a copy of the motion and rule nisi, is given to the prosecuting official who brought the original charge at least ten days prior to the motion hearing; and
    3. A hearing is held with opportunity for the state to be heard.
  2. If the original judgment is changed or modified pursuant to this Code section, the judge shall certify to the Department of Driver Services that such change or modification is a true and correct copy of the change or modification and that the requirements set forth in paragraphs (1) through (3) of subsection (a) of this Code section have been met.
  3. Except for orders correcting clerical errors, the Department of Driver Services shall not recognize as valid any change or modification order nor make any changes to a driver's history unless such change or modification as submitted to the department is in strict compliance with the requirements set forth in subsections (a) and (b) of this Code section.
  4. In the case of municipal courts, notice to the city attorney, or to the solicitor in those cases where the municipal court has a solicitor, shall be deemed to be notice as provided for in this Code section.
  5. In all cases wherein notice is required in this Code section, same shall be deemed sufficient if sent by certified mail or statutory overnight delivery, return receipt requested, with adequate postage thereon, to the correct address of the prosecuting official.
  6. Notwithstanding other laws and specifically notwithstanding Code Section 17-7-93, a motion to change or modify a traffic law sentence or judgment may, at any time prior to the expiration of the term of court following the term at which judgment and sentence were pronounced or within 90 days of the time judgment and sentence were pronounced, whichever time period is greater, be made by the defendant and accepted by the court as provided in this Code section.

(Code 1981, §40-13-32, enacted by Ga. L. 1984, p. 1144, § 1; Ga. L. 1985, p. 149, § 40; Ga. L. 1988, p. 1893, § 4; Ga. L. 1989, p. 14, § 40; Ga. L. 2000, p. 951, § 7A-2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2005, p. 334, § 22-3/HB 501.)

OPINIONS OF THE ATTORNEY GENERAL

Strict compliance required.

- Subsection (a) of O.C.G.A. § 40-13-32 reflects the intent of the General Assembly that all orders modifying previously entered judgments in misdemeanor traffic cases be considered of no force and effect unless the orders fully comply with all applicable provisions of that section, including both the procedural requirements of subsection (a) and the jurisdictional limitations found in subsection (f). The terminology specifically means that substantial compliance is insufficient. 1989 Op. Att'y Gen. No. 89-22.

Department of Public Safety is authorized to amend a plea of guilty or nolo contendere only after strict compliance with the procedural requirements of subsection (a) of O.C.G.A. § 40-13-32, when applicable, and when the order modifying the judgment reflects that the order is based on a motion filed in a timely manner as defined in subsection (f). 1989 Op. Att'y Gen. No. 89-22.

Nunc pro tunc order.

- If a nunc pro tunc order is entered by the court within 90 days of judgment and within the term of court and is not a clerical error, as such a nunc pro tunc order need not reflect compliance with the procedural requirements of subsection (a) of O.C.G.A. § 40-13-32, no further showing is required for the Department of Public Safety to make the appropriate changes to the Department's records. 1989 Op. Att'y Gen. No. 89-22.

If a nunc pro tunc order is entered by the court outside the term of court and is not a clerical error, under subsection (f) of O.C.G.A. § 40-13-32, so long as the modification is based upon a motion filed within 90 days of judgment, the Department of Public Safety need not be concerned about the term of court, nor with compliance with the procedural requirements of subsection (a), but beyond the 90-day time period the department may not accept orders that do not reflect strict compliance with the procedural requirements of subsection (a), and orders based upon motions filed outside the 90-day time period are valid only if the trial court possessed the jurisdiction to enter the orders, which is dependent upon the filing of the motion which led to the modification within either the term of court that the judgment was entered or the next succeeding term. 1989 Op. Att'y Gen. No. 89-22.


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