Stanley Eugene Ashmore v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 10, 2016
The Court of Appeals hereby passes the following order:
A17A0506. STANLEY EUGENE ASHMORE v. THE STATE.
In 2009, Stanley Eugene Ashmore was found guilty of aggravated assault and
aggravated battery. The trial court imposed a 20-year sentence on the aggravated
assault conviction and a consecutive 20-year sentence on the aggravated battery
conviction. In August 2016, Ashmore filed a motion to vacate or correct void
sentence, which the trial court denied. We lack jurisdiction.
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 Harper v. State, 286 Ga. 216, 217, n. 1 (686 SE2d 786) (2009); 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). 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).
Ashmore argues in his motion to vacate or correct void sentence that the trial
court lacked the authority to impose the sentence on his aggravated battery conviction
because that conviction should have merged into his aggravated assault conviction.
Ashmore’s merger claim is a challenge to his convictions, and not his sentences, and
thus does not state a valid void-sentence claim. See Williams v. State, 287 Ga. 192,
193-194 (695 SE2d 244) (2010).
Because Ashmore has not raised a valid void-sentence claim, we lack
jurisdiction to consider his appeal. See Harper, 286 Ga. at 218 (2). Moreover, to the
extent that Ashmore’s motion could be construed as seeking to vacate or modify his
convictions, “a petition to vacate or modify a judgment of conviction is not an
appropriate remedy in a criminal case,” id. at 218 (1), and any appeal from an order
denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also
Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010).
For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
11/10/2016
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.