Willie A. Boykin v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,__________________ December 23, 2013

The Court of Appeals hereby passes the following order:

A14A0423. WILLIE A. BOYKIN v. THE STATE.

Willie Boykin entered a plea of guilty to burglary and theft by taking in 2009. In 2012, Boykin filed a “motion to set aside null and void conviction and sentence,” which the trial court denied. Boykin filed a notice of appeal to this Court. We lack jurisdiction. “[A] petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009). Any appeal from an order denying or dismissing such a motion must be dismissed. See Harper, supra; Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). 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, supra at n.1; 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. Von Thomas v. State, 293 Ga. 569, 571 (748 SE2d 446) (2013); Crumbley v. State, 261 Ga. 610, 611 (a) (409 SE2d 517) (1991). In his motion, Boykin argues that the indictment was defective and that the theft charge was a lesser included offense of burglary. These are challenges to the validity of his conviction, not his sentence. Because Boykin has not asserted a colorable void-sentence claim, his appeal is hereby DISMISSED.1 Because it does not appear that Boykin has had a direct appeal, he is advised as follows: You may petition the trial court for leave to file an out-of-time appeal. If the trial court grants your request, you will have 30 days from the entry of that order to file a notice of appeal referencing your conviction. If the trial court denies your request, you will have 30 days from the entry of that order to file a notice of appeal referencing the denial of your request for an out-of-time appeal.

Court of Appeals of the State of Georgia 12/23/2013 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.