Darius Culver v. State

Court of Appeals of Georgia

Darius Culver v. State

DecidedSeptember 10, 2014

DocketA14A2257

StatusPublished

This text of Darius Culver v. State (Darius Culver v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Darius Culver v. State, (Ga. Ct. App. 2014).

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Court of Appeals of the State of Georgia

ATLANTA,__________________ September 09, 2014

The Court of Appeals hereby passes the following order:

A14A2257. DARIUS CULVER v. THE STATE.

Darius Culver was found guilty of two counts of first degree forgery and two counts of burglary by deception. We affirmed his convictions on appeal. See Culver v. State, 314 Ga. App. 492 (724 SE2d 485) (2012). Culver subsequently filed a pro se motion to set aside the conviction and sentence, arguing that his accusation was unlawful and void. The trial court denied the motion, and Culver appeals. Despite its caption, Culver’s motion to set aside is, in substance, an effort to vacate his conviction and sentence. As the Supreme Court has made clear, however, a post-conviction motion seeking to vacate an allegedly void criminal conviction is not one of the established procedures for challenging the validity of a judgment in a criminal case, and an appeal from the trial court’s ruling on such a petition should be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009). While a direct appeal may lie from an order denying or dismissing a motion to correct a void sentence, this is true only if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper, supra at n.1; Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). And a sentence is void only when the trial court imposes punishment that the law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Here, Culver’s arguments regarding the allegedly flawed accusation challenge the validity of his convictions and are not proper grounds for a motion to vacate. See Grogan v. State, 297 Ga. App. 251, 253 (676 SE2d 764) (2009). In addition, Culver did not assert a colorable void sentence claim. The record shows that Culver was convicted of two counts of first degree forgery and two counts of burglary by deception, so the judge was authorized to sentence Culver to 10 years to run concurrently on the forgery counts and merge the theft by deception counts into the forgery counts. OCGA § 16-9-2 (a); 17-10-7 (a) & (c). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 09/09/2014 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.

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Court of Appeals of the State of Georgia

ATLANTA,__________________ September 09, 2014

The Court of Appeals hereby passes the following order:

A14A2257. DARIUS CULVER v. THE STATE.

Darius Culver was found guilty of two counts of first degree forgery and two counts of burglary by deception. We affirmed his convictions on appeal. See Culver v. State, 314 Ga. App. 492 (724 SE2d 485) (2012). Culver subsequently filed a pro se motion to set aside the conviction and sentence, arguing that his accusation was unlawful and void. The trial court denied the motion, and Culver appeals. Despite its caption, Culver’s motion to set aside is, in substance, an effort to vacate his conviction and sentence. As the Supreme Court has made clear, however, a post-conviction motion seeking to vacate an allegedly void criminal conviction is not one of the established procedures for challenging the validity of a judgment in a criminal case, and an appeal from the trial court’s ruling on such a petition should be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009). While a direct appeal may lie from an order denying or dismissing a motion to correct a void sentence, this is true only if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper, supra at n.1; Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). And a sentence is void only when the trial court imposes punishment that the law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Here, Culver’s arguments regarding the allegedly flawed accusation challenge the validity of his convictions and are not proper grounds for a motion to vacate. See Grogan v. State, 297 Ga. App. 251, 253 (676 SE2d 764) (2009). In addition, Culver did not assert a colorable void sentence claim. The record shows that Culver was convicted of two counts of first degree forgery and two counts of burglary by deception, so the judge was authorized to sentence Culver to 10 years to run concurrently on the forgery counts and merge the theft by deception counts into the forgery counts. OCGA § 16-9-2 (a); 17-10-7 (a) & (c). Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 09/09/2014 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.

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Darius Culver v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darius-culver-v-state-gactapp-2014.

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