Delorean Michael Ward v. State

• Court: Court of Appeals of Georgia
• Decided: January 18, 2019
• Docket: A19A0955
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 18, 2019

The Court of Appeals hereby passes the following order:

A19A0955. DELOREAN MICHAEL WARD v. THE STATE.

Delorean Michael Ward was convicted of aggravated sexual battery, aggravated child molestation, and child molestation. We affirmed his convictions on appeal. Ward v. State, 274 Ga. App. 511 (618 SE2d 154) (2005). Ward later filed a “Motion to Correct Void Sentence,” which the trial court denied. Ward now appeals. A direct appeal may lie from an order denying or dismissing a motion to vacate a void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact, void. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991). “Motions to vacate a void sentence generally are limited to claims that – even assuming the existence and validity of the conviction for which the sentence was imposed – the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). In his motion, Ward argued that his child molestation and aggravated child molestation convictions should have merged under OCGA § 16-7-1 (a), which “renders illegal a conviction for a crime that should have merged.” Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010). Thus, “a claim that a charge should have merged under OCGA § 16-1-7 is a specific attack on the conviction.” Id. However, a motion to vacate a conviction is not one of the established procedures for challenging the validity of a judgment in a criminal case, and an appeal from an order denying such a motion must be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper, 286 Ga. at 218 (1). In the absence of a colorable void- sentence claim, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/18/2019 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.