Christopher Baine Thomas v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 06, 2016
The Court of Appeals hereby passes the following order:
A16A1798. CHRISTOPHER BAINE THOMAS v. THE STATE.
In 1996, a jury convicted Christopher Baine Thomas of kidnapping and armed
robbery. The trial court sentenced him to twenty years to serve on the kidnapping
count and ten years to serve on the armed robbery count, to run consecutively. We
affirmed Thomas’s convictions on appeal. Thomas v. State, 238 Ga. App. 42 (517
SE2d 585) (1999).
In 2015, Thomas filed a motion to correct a void sentence, arguing that, in the
absence of aggravating factors, the law required his sentences to run concurrently,
rather than consecutively. The trial court denied the motion, Thomas appealed, and
we dismissed his appeal on the ground that he had not raised a colorable void
sentence claim. See Case No. A15A144 (decided April 9, 2015).
In 2016, Thomas filed another motion to correct a void sentence, arguing that
the facts require merger of his convictions and concurrent sentences and, thus, his
consecutive sentences are illegal and violate the prohibition against double jeopardy.
The trial court denied Thomas’s motion on April 21, 2016, and Thomas filed this
timely notice of appeal. We lack jurisdiction.
An appeal may lie from an order denying a motion to correct a void sentence
if the defendant raises a colorable claim that the sentence is, in fact, void or illegal.
See Harper v. State, 286 Ga. 216 (1) n.1 (686 SE2d 786) (2009); Burg v. State, 297
Ga. App. 118, 119 (676 SE2d 465) (2009). Thomas’s merger argument, however, is
a challenge to his convictions, not to his sentence. See Williams v. State, 287 Ga. 192(695 SE2d 244) (2010). Because Thomas has not raised a valid void-sentence claim,
we lack jurisdiction to consider his appeal.1 See id.; Harper, supra, 286 Ga. at 218
(2). Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
06/06/2016
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.
1
Moreover, Thomas raised the same argument in his 2015 appeal. “It is
axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of
appeals of the same issue on the same grounds.” Echols v. State, 243 Ga. App. 775,
776 (534 SE2d 464) (2000); see also Jordan v. State, 253 Ga. App. 510, 511 (2) (559
SE2d 528) (2002). Our ruling in the prior case acts as res judicata. See Hook v.
Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007). Thus, Thomas is
estopped from seeking further judicial review on the validity of his sentence. See id.;
see also Ross v. State, 310 Ga. App. 326, 328 (713 SE2d 438) (2011) (law of the case
rules bar successive void sentence appeals).