Jaryn Ware v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ August 22, 2013

The Court of Appeals hereby passes the following order:

A13D0510. JARYN WARE v. THE STATE.

Jaryn Ware was convicted of armed robbery, hijacking a motor vehicle, and two counts of possession of a firearm during the commission of a crime, and his convictions were affirmed on appeal. See Copeny v. State, 316 Ga. App. 347 (729 SE2d 487) (2012). Ware subsequently filed a motion to vacate a void sentence, which the trial court denied. Ware filed an application for discretionary appeal from this ruling.

There is no provision of OCGA § 5-6-35 (a) that requires an application for discretionary appeal from a trial court’s order denying a motion to vacate an allegedly void sentence. If an applicant applies for discretionary review of a directly appealable order, we grant the application under OCGA § 5-6-35 (j). Here, however, Ware does not have a right of direct appeal.

An appeal may lie from an order denying 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 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Ware contends that his sentence is void because the trial court failed to merge his two convictions for possession of a firearm during the commission of a crime. This merger argument is a challenge to his convictions, not to his sentence. See Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010). Because Ware has not raised a valid void-sentence claim, we may not consider his application. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper, supra. Accordingly, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia 08/22/2013

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.