Gary Ford v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 25, 2016
The Court of Appeals hereby passes the following order:
A16D0365. GARY FORD v. THE STATE.
On August 25, 2009, Gary Ford pled guilty to aggravated battery, robbery by
force, and battery. Ford subsequently filed a number of motions to vacate, which the
trial court denied. Most recently, Ford filed a “Petition for Equitable Relief from
Judgment Due to Fraud,” which the trial court construed as a motion to vacate. The
trial court denied the motion on April 5, 2016, and Ford filed this direct appeal. We
lack jurisdiction.
“[A] petition to vacate or modify a judgment of conviction is not an appropriate
remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786)
(2009). Any appeal from an order denying or dismissing such a motion must be
dismissed. See id. at 218 (2); Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150)
(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. See Harper, supra at 217 n.1; Burg v. State, 297 Ga. App. 118, 119
(676 SE2d 465) (2009). “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).
Accordingly, 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, Ford does not argue that his sentence exceeded legal limits; rather, he
claims, among other arguments, that he was fraudulently indicted and received
ineffective assistance of counsel. These are challenges to the validity of his
convictions, not his sentence. See Brown v. State, 297 Ga. App. 738 (678 SE2d 172)
(2009) (challenge alleging ineffective assistance of counsel does not assert a ground
upon which a conviction can be declared void); Jones v. State, 290 Ga. App. 490, 493
(1) (659 SE2d 875) (2008) (challenge regarding indictment does not raise a valid void
sentence claim). Because Taylor has not raised a colorable void-sentence claim, this
appeal is hereby DISMISSED for lack of jurisdiction. See Roberts, supra. Because
Ford has not raised a colorable argument that his sentence is void, this appeal is
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
05/25/2016
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.