Jesse Anderson v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 17, 2019

The Court of Appeals hereby passes the following order:

A19A1129. JESSE ANDERSON v. THE STATE.

In 2014, Jesse Anderson pleaded guilty to armed robbery, aggravated assault, and possession of cocaine. In 2017, he filed a “Motion to Correct, Vacate, and/or Arrest the Void Sentence.”1 The trial court denied that motion, and Anderson appeals. An appeal may lie from an order denying a motion to vacate or correct 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). “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). Thus, when a sentence is within the statutory range of punishment, it is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). In his motion, Anderson argued that his armed robbery and aggravated assault 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). “[A] claim that a charge should have merged under OCGA

1 In 2015, Anderson filed a previous motion to modify his sentence, which the trial court dismissed. Anderson appealed to this Court, but we dismissed the appeal because he failed to file a brief and enumeration of errors. See Case No. A17A1633 (decided June 23, 2017). § 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, 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,____________________ 01/17/2019 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.