Clarence Strickland v. State ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 16, 2015
The Court of Appeals hereby passes the following order:
A16A0355. CLARENCE STRICKLAND v. THE STATE.
A jury found Clarence Strickland guilty of aggravated sodomy against his
daughter, and we affirmed his conviction on appeal. See Strickland v. State, 311 Ga.
App. 400 (715 SE2d 798) (2011). Strickland subsequently filed a motion to vacate
a void judgment, which the trial court denied on February 5, 2015. Strickland filed
a notice of appeal from this ruling on April 9, 2015. We lack jurisdiction for two
reasons.
First, a notice of appeal must be filed within 30 days after entry of the
appealable order. See OCGA § 5-6-38 (a). The proper and timely filing of a notice
of appeal is an absolute requirement to confer jurisdiction on this Court. See Rowland
v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). Because Strickland filed his notice
of appeal 63 days after entry of the trial court’s order, his appeal is untimely.
Second, “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. at 218 (2); Roberts v. State, 286 Ga. 532, 532 (690 SE2d
150) (2010). A direct 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, supra at 217 n.1; 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). Here, Strickland does
not argue that his sentence fell outside the permissible statutory range and thus has
not raised a colorable void sentence claim. Accordingly, we lack jurisdiction over this
appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
11/16/2015
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.