2005, a jury found Jordan Lee Warbington guilty of murder,
felony murder, and aggravated assault in the bludgeoning
death of Kenneth "Tate" Cain in the break room of
the Warbington family mortuary. The judgment of conviction
was affirmed in Warbington v. State, 281 Ga. 464
(640 S.E.2d 11) (2007).
alleges that, after indictment and before his trial and
conviction for murder, he was incarcerated in the state
prison system for an unrelated offense after his parole was
revoked. On August 14, 2017, Warbington filed a pro se
"Motion for Jail-Credit Time" in his original
criminal proceeding, seeking to have the time served on the
unrelated offense after his parole was revoked credited
against his subsequently imposed sentence for murder. The
motion was denied by the trial court on August 31, 2017, and
Warbington appeals to this Court. For the reasons stated
below, we dismiss the appeal.
Wilson v. State, 273 Ga. 97, 97 (538 S.E.2d 429)
(2000), this Court considered a similar appeal. Wilson, a
prisoner, filed a motion in the trial court seeking a credit
against his sentence for time spent in confinement on an
unrelated offense, which the trial court denied. Relying on
this Court's subject matter jurisdiction over a sentence
in a murder conviction, Ga. Const. Art. VI, Sec. VI, Par. III
(8), we ruled on the merits and affirmed, holding that the
statutory provisions that allow crediting of sentences apply
"'only to persons who would not be confined but for
the charges which give rise to the sentence for which credit
is sought.' Spann v. Whitworth, 262 Ga. 21,
23-24 (2) (413 S.E.2d 713) (1992). See also Tucker v.
Stynchcombe, 239 Ga. 356 (236 S.E.2d 623) (1977)."
Id. In so doing, we expressly pretermitted and did
not decide "whether Wilson's motion was properly
filed in the court in which he was convicted."
clear before Wilson, however, that a prisoner
seeking credit for time served should generally seek relief
through a petition for writ of mandamus against the official
responsible for calculation of the time. See, e.g.,
Spann, supra, 262 Ga. at 22; Bryant v.
Evans, 244 Ga. 673 (261 S.E.2d 620) (1979);
Tucker, supra, 239 Ga. at 357. While it is true that
in those appeals the petitioner's method of seeking
relief was not in dispute, the Court of Appeals has noted
that, under the relevant statutory provisions of OCGA
§§ 17-10-11 and 17-10-12,
the amount of credit is to be computed by the convict's
pre-sentence custodian, and the duty to award the credit for
time served prior to trial is upon the Department of
Corrections. The trial court is therefore not involved in
this matter. If aggrieved by the calculations in awarding
credit, [appellant] should have sought relief from the
Department of Corrections. Dissatisfaction with that relief
would not be a part of his direct appeal from his original
conviction but would be in a mandamus or injunction action
against the Commissioner of the Department of Corrections.
punctuation, and footnotes omitted.) Cutter v.
State, 275 Ga.App. 888, 890 (2) (622 S.E.2d 96) (2005).
And this holding has been followed many times. See, e.g.,
Adams v. State, 316 Ga.App. 161, 163-164 (2) (728
S.E.2d 711) (2012); Williams v. State, 300 Ga.App.
319, 320-321 (684 S.E.2d 432) (2009).
since Wilson, we have made clear that the proper
procedure for seeking relief is not a point to be overlooked,
even if the claim is clearly meritless. Henderson v.
State, ___ Ga. ___ (Case No. S17A1785, decided March 5,
2018). In Henderson, we overruled Coles v.
State, 223 Ga.App. 491, 491 (1) (477 S.E.2d 897) (1996),
which had deemed a post-trial motion filed in the
petitioner's original murder case as "a civil action
in the nature of mandamus, " and took subject matter
jurisdiction of the appeal under Ga. Const. Art. VI, Sec. VI,
Par. III (8). Id. at (1). Having established
jurisdiction, we dismissed Henderson's appeal because his
motion sought a remedy that the law does not recognize, it
should have been dismissed as a nullity, and he therefore had
"nothing cognizable to appeal." Id. at
(2), citing Harper v. State, 286 Ga. 216, 218 (686
S.E.2d 786) (1) (2009).
even though Warbington's motion was meritless for the
same reason as Wilson's, we will not overlook his failure
to raise that claim through a petition for mandamus against
the appropriate official in the Department of Corrections,
rather than as a motion in his criminal case. While the trial
court recognized this issue, noting that "pursuant to
OCGA § 17-10-12, the duty to award credit for time
served is the duty of the Georgia Department of Corrections,
" it denied the motion when it should have been
dismissed as a nullity. Because the motion was a nullity, it
presents nothing to appeal and Warbington's appeal is
therefore dismissed. See Henderson, supra at (2).
 But cf. Lillard v. Head, 267
Ga. 291, 292 (476 S.E.2d 736) (1996) (reversing dismissal of
petition for writ of habeas corpus when prisoner alleged
confinement beyond term of lawful sentence); Cutter,
supra, 275 Ga.App. at 890-891 (issue considered on direct
appeal and sentencing order remanded "where the trial
court in its written sentencing order gives gratuitous
misdirection to the correctional custodians" (citation