David L. Harper v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 15, 2019
The Court of Appeals hereby passes the following order:
A19A2049. DAVID L. HARPER v. THE STATE.
A jury convicted David L. Harper of two counts of criminal trespass. The
Supreme Court affirmed Harper’s convictions, State v. Harper, 303 Ga. 144 (810
SE2d 484) (2018), and we issued the remittitur on June 29, 20181. See Case No.
A16A1008. On November 8, 2018, Harper filed a motion to vacate void sentence,
arguing that, as a bail recovery agent, he could not be prosecuted for criminal
trespass. The trial court denied the motion and Harper filed this direct appeal. We,
however, lack jurisdiction.
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, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period expires, a trial court may only modify a void
sentence. Id. And a direct appeal may lie from an order denying a motion to vacate
or correct a void sentence only if the defendant raises a colorable claim that the
sentence is, in fact, void. See Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465)
(2009). 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, Harper does not argue that his sentence falls outside the permissible
1
We originally vacated one of Harper’s criminal trespass convictions, see
Harper v. State, 338 Ga. App. 535, 538-539 (2) (790 SE2d 552) (2016), but the
Supreme Court reversed our judgment, holding that the evidence was sufficient to
support a finding of guilt. See Harper, 303 Ga. at 147.
statutory range, but instead argues that his entry was not subject to criminal
prosecution. The Supreme Court has made clear that a motion seeking to challenge
an allegedly invalid or void judgment of conviction “is not one of the established
procedures for challenging the validity of a judgment in a criminal case” and that an
appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286
Ga. 532, 532 (690 SE2d 150) (2010). Thus, Harper is not authorized to collaterally
attack his conviction in this manner. See id.; Harper v. State, 286 Ga. 216, 218 (1),
(2) (686 SE2d 786) (2009); Matherlee v. State, 303 Ga. App. 765, 766 (694 SE2d
665) (2010).
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/15/2019
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.