Troy Wade v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 23, 2016
The Court of Appeals hereby passes the following order:
A17A0513. TROY WADE v. THE STATE.
In 2008, Troy Wade entered Alford1 pleas to attempted rape, robbery by force,
kidnapping, and aggravated assault. The trial court imposed a ten-year prison sentence
on the attempted rape conviction and concurrent twenty-year prison sentences on the
remaining convictions, to be served consecutively to the sentence for attempted rape.
In June 2016, Wade filed a motion to correct void sentence, which the trial court
denied on August 1, 2016. Wade filed a notice of appeal on September 21, 2016. We
lack jurisdiction for two reasons.
First, a notice of appeal must be filed within 30 days of entry of the order
sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice
of appeal is an absolute requirement to confer jurisdiction on this Court. Rowland v.
State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Because Wade filed his notice of
appeal 51 days after entry of the trial court’s order, his appeal is untimely.
Second, 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
1
North Carolina v. Alford, 400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970).
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).
Wade argues in his motion to correct void sentence that the trial court lacked
the authority to impose consecutive sentences because his attempted rape conviction
should have merged into his remaining convictions. Wade’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 Wade has not raised a valid void-sentence claim, we lack jurisdiction
to consider his appeal. See Harper, 286 Ga. at 218 (2). To the extent that Wade’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
11/23/2016
Clerk’s Office, Atlanta,____________________
I certify that the abov e 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.