Ivan Cruz v. State

• Court: Court of Appeals of Georgia
• Decided: December 1, 2022
• Docket: A23A0541
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 01, 2022

The Court of Appeals hereby passes the following order:

A23A0541. IVAN CRUZ v. THE STATE.

Ivan Cruz appeals the trial court’s order dismissing his motion to vacate a void sentence. Cruz was sentenced to life with 25 years to serve for the offenses of aggravated child molestation and aggravated sexual battery. Cruz contends these sentences are unlawful under this Court’s reasoning in Upton v. State, 350 Ga. App. 535 (829 SE2d 791) (2019). We disagree. This is Cruz’s fourth appearance in this Court. After pleading guilty in 2016, Cruz filed his first motion to vacate a void sentence. Cruz appealed the denial of this motion, and we vacated in part the order and remanded the case for the trial court to impose a split sentence. Cruz v. State, 346 Ga. App. 802 (815 SE2d 311) (2018). Following entry of a new sentence, Cruz filed a motion to withdraw his guilty plea. The trial court denied the motion, and this Court affirmed in an unpublished opinion. Cruz v. State, Case No. A20A0273 (June 15, 2020). Cruz then filed a motion for out- of-time appeal. The trial court denied the motion, and Cruz appealed yet again. This appeal was dismissed. Cruz v. State, Case No. A21A1607 (Aug. 12, 2021). In March 2022, Cruz filed a second motion to vacate a void sentence. The trial court denied the motion, and Cruz filed this appeal. Since he has already appealed the validity of his sentence, however, Cruz is not entitled to a second appeal. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (law of the case rule precludes multiple appeals stemming from the same issue). Furthermore, Cruz’s argument lacks merit. Here, Cruz was sentenced to life with 25 years to serve and the remainder on probation, which is clearly permitted. Upton, 350 Ga. App. at 539 (3). A direct appeal will lie from an order denying or dismissing a motion to correct a void sentence if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper v. State, 286 Ga. 216, 217 (1) n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Because Cruz has not raised a colorable claim – and because he has already appealed the validity of his sentence – he is not entitled to a direct appeal. This appeal is therefore DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/01/2022 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.