Deante Gholston v. State

• Court: Court of Appeals of Georgia
• Decided: June 27, 2014
• Docket: A14A0405
• Status: Published

Opinion

THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

June 27, 2014

In the Court of Appeals of Georgia A14A0405. GHOLSTON v. THE STATE.

BARNES, Presiding Judge.

On January 29, 2010, Deante Gholston pled guilty to armed robbery and

robbery by force, and the trial court sentenced him to two consecutive 15-year

sentences, with the initial 15 years to be served in confinement and the remaining 15

years to be served on probation. On January 28, 2011, Gholston filed a pro se

“Extraordinary Motion to Withdraw Guilty Plea,” contending that he should be

permitted to withdraw his plea because his indictment failed to allege the essential

elements of the crimes, including venue, and because the two crimes should have

merged for purposes of sentencing. The trial court dismissed the motion as untimely,

and Gholston now appeals the dismissal. Discerning no error, we affirm.

Gholston’s motion was untimely, whether construed as a motion to withdraw

his guilty plea or as a motion in arrest of judgment. “Both sorts of motions must be filed within the same term of court at which the guilty plea or judgment being

challenged was entered.” Hagan v. State, 290 Ga. 353 (720 SE2d 645) (2012).

Gholston’s guilty plea and the resulting judgment were entered in January 2010,

during the December 2009 term of court in Bibb County. See OCGA § 15-6-3 (23)

(A). A new term of court began on Monday, February 1, 2010. See id. Hence,

Gholston’s January 2011 motion was filed outside the term of court in which his plea

and the resulting judgment had been entered, depriving the trial court of jurisdiction

to consider it. See Hagan, 290 Ga. at 353.

Gholston suggests that his motion was timely because he was challenging his

sentence as void, and a void sentence can be challenged at any time. See Ward v.

State, 311 Ga. App. 53 (714 SE2d 731) (2011). But Gholston did not raise a proper

void sentence claim. Rather, Gholston claimed that the indictment failed to allege the

essential elements of the crime, including venue, and such a claim relates to the

validity of his conviction, not his sentence. See Hagan, 290 Ga. at 353; Jones v. State,

290 Ga. App. 490, 493 (1) (659 SE2d 875) (2008). Likewise, Gholston’s claim that

his convictions for armed robbery and robbery by force should have merged is a claim

challenging his convictions and not a claim that his resulting sentence was void. See

Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010); Rogers v. State, 314

2 Ga. App. 398, 399-400 (724 SE2d 417) (2012). Furthermore, a sentence is not void

if it “falls within the statutory range of punishment.” (Citation and punctuation

omitted.) Ward, 311 Ga. App. at 54. Gholston’s sentence thus was not void because

it fell within the statutory range of punishment for armed robbery and robbery by

force. See OCGA §§ 16-8-40 (b); 16-8-41 (b).

For these combined reasons, the trial court lacked jurisdiction to consider

Gholston’s untimely “Extraordinary Motion to Withdraw Guilty Plea.” The trial

court, therefore, properly dismissed the motion. See Ward, 311 Ga. App. at 54.

Judgment affirmed. Boggs and Branch, JJ., concur.