Johnnie Lee Durden v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 01, 2017
The Court of Appeals hereby passes the following order:
A17D0383. JOHNNIE LEE DURDEN v. THE STATE.
This is the third time Johnnie Lee Durden has appealed to this Court. The
record shows that in 2007, Durden entered guilty pleas on three different indictments
to several offenses and was sentenced to serve 17 years. Durden subsequently filed
an extraordinary motion for new trial, which the trial court denied in 2012. Durden
filed a notice of appeal from that order, but we dismissed the appeal because it was
untimely and Durden had failed to follow the appropriate appellate procedures. Case
No. A15A0059 (decided Sept. 15, 2014). Durden then filed an extraordinary motion
to withdraw his guilty plea. The trial court dismissed the motion as untimely, and
Durden once again appealed. In an unpublished opinion, we affirmed the trial court’s
dismissal. Case No. A16A0747 (decided May 2, 2016). Thereafter, Durden filed a
motion to vacate a void conviction. The trial court denied his motion, and Durden
filed this application for discretionary appeal. We lack jurisdiction.
“[A] petition to vacate or modify a judgment of conviction is not an appropriate
remedy in a criminal case[,]” and any appeal from an order denying such a motion
must be dismissed. Harper v. State, 286 Ga. 216, 217-218 (1) (686 SE2d 786) (2009).
A direct appeal may lie from an order denying or dismissing a motion to correct a
void sentence, but only if the defendant raises a colorable claim that the sentence is,
in fact, void or illegal. See Harper, supra at n.1; Burg v. State, 297 Ga. App. 118, 119
(676 SE2d 465) (2009). A sentence is void only when the trial court imposes
punishment that the law does not allow. See Jordan v. State, 253 Ga. App. 510, 511
(1) (559 SE2d 528) (2002). “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, Durden has not provided this Court with a copy of the motion to vacate
his void conviction, but Durden argues in his application that he filed the motion to
vacate “based on violation of the Double Jeopardy Clause,” arguing that “the charges
violate[d] the provisions set forth under the Double Jeopardy Clause.” Durden does
not contend that his sentence falls outside the statutory range. Because Durden is not
entitled to attack his convictions in this manner, we lack jurisdiction to consider this
appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/01/2017
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.