Frederick Dwight Green v. State ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 09, 2015
The Court of Appeals hereby passes the following order:
A16A0316. FREDERICK DWIGHT GREEN v. THE STATE.
In 2008, Frederick Dwight Green was convicted of armed robbery and
aggravated assault. The jury, however, found him not guilty of two counts of
possession of a firearm during the commission of a crime. We affirmed Green’s
convictions and sentence in an unpublished opinion. Green v. State, Case No.
A09A1273 (decided Sept. 8, 2009). Green subsequently filed a pro se motion,
arguing that because the jury found him not guilty of possession of a firearm, it
obviously found that no gun was involved. Green insists that, in light of this finding,
his convictions for aggravated assault and armed robbery are void. The trial court
denied Green’s motion, and he then filed this appeal.
“[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 id.; 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. Crumbley v. State, 261 Ga. 610, 611 (a) (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).
Here, Green did not contend that his sentence was outside the statutory
maximum for his offenses. Instead, he argued that his convictions are invalid because
they are based on inconsistent verdicts. This is not a colorable void-sentence
argument. See id.Moreover, the Supreme Court recently overruled its prior precedent barring
mutually exclusive verdicts. See State v. Springer, 297 Ga. 376 (2) (774 SE2d 106)
(2015). See also Williams v. State, __ Ga. __ (Case No. S15A0939, decided Nov. 2,
2015) (applying Springer rule in a case where the conviction was entered in 2008);
Driskell v. State, __ Ga. App. __ (Case No. A15A1443, decided Sept. 23, 2015) (With
Springer, “the inconsistent verdict rule has been abolished in Georgia.”).
Because Green did not raise a colorable void-sentence argument, we lack
jurisdiction to review the trial court’s denial of his motion. See Roberts, supra.
Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
12/09/2015
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.