Kevan C. Pickstock v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 03, 2016
The Court of Appeals hereby passes the following order:
A16A1086. KEVAN C. PICKSTOCK v. THE STATE.
In 1997, a jury convicted Kevan C. Pickstock of 13 counts including burglary,
kidnapping, robbery, and aggravated assault, and his convictions were affirmed on
appeal. See Pickstock v. State, 235 Ga. App. 451 (509 SE2d 717) (1998). On May
1, 2015, Pickstock filed a “Motion for Entry of a Valid Judgment of Sentence,”
arguing his sentence was excessive. The trial court denied the motion on November
16, 2015, and Pickstock filed a notice of appeal on January 1, 2016.1 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 Pickstock filed
his notice of appeal 45 days after entry of the trial court’s order, his appeal is
untimely.
Second, pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a
sentence during the year after its imposition, or within 120 days after remittitur
following a direct appeal, whichever is later. Once this statutory period expires, a
trial court may only modify a void sentence. See Frazier v. State, 302 Ga. App. 346,
1
Pickstock also filed an application for discretionary review from the trial
court’s order denying his Motion for Entry of a Valid Judgment of Sentence. That
application was dismissed because it was untimely. See A16D0206, dismissed on
January 19, 2016.
348 (691 SE2d 346) (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. Id. “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. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). Accordingly,
allegations that merely challenge the sentencing procedure or question the fairness
of a sentence do not raise a colorable claim of voidness and cannot form the basis for
a direct appeal. See Frazier, supra at 348. Here, Pickstock 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
03/03/2016
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.