Charles Williams v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 19, 2017
The Court of Appeals hereby passes the following order:
A17D0535. CHARLES WILLIAMS v. THE STATE.
In May 2015, Charles Williams pled guilty to burglary and was sentenced as
a recidivist to 15 years. Two years later, Williams filed a motion to vacate a void
sentence. The trial court denied the motion, and Williams filed this application for
discretionary appeal. We lack jurisdiction.
As a threshold matter, we note that no provision of OCGA § 5-6-35, the
discretionary appeal statute, appears to apply to this case. Ordinarily, we will grant
a timely application when the lower court’s order is subject to direct appeal. See
OCGA § 5-6-35 (j). Here, however, the trial court’s order is not subject to direct
appeal.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247)
(2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this
statutory period expires, as it had here when Williams filed his motion, a trial court
may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d
483) (2004). A sentence is void only when the trial court imposes punishment that the
law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528)
(2002). Accordingly, “[m]otions 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). 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. Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg v.
State, supra at 119.
In his void-sentence motion, Williams argued that the State failed to provide
proper notice of the prior felony offenses used to enhance his sentence. However,
“[s]uch notice requirements are procedural and not substantive in nature. And the
failure to adhere to such procedures . . . does not render sentences imposed without
such procedures ‘void’ so as to secure direct appellate review subsequent to the first
appeal.” Ward v. State, 299 Ga. App. 63, 64-65 (682 SE2d 128) (2009) (citations and
punctuation omitted); see also von Thomas, supra at 572-573 (2). Because Williams
has not raised a colorable void-sentence argument, he is not entitled to a direct appeal
and this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/19/2017
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.