Adrian Bernard Payton v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 20, 2019
The Court of Appeals hereby passes the following order:
A20D0146. ADRIAN BERNARD PAYTON v. THE STATE.
It appears that in 2013, Adrian Bernard Payton pled guilty to armed robbery
and possession of a firearm during the commission of a crime. It also appears that in
February 2019, Payton filed a “motion to correct void and illegal sentence,” alleging
that his arrest warrant affidavit was deficient. The trial court denied the motion on
August 27, 2019. On October 25, 2019, Payton filed this application for discretionary
review of the trial court’s order. We lack jurisdiction for two reasons.
First, Payton’s application is untimely. To be timely, a discretionary application
must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d);
Hill v. State, 204 Ga. App. 582, 583 (420 SE2d 393) (1992). This statutory deadline
is jurisdictional, and we cannot accept an application for appeal not made in
compliance therewith. Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989).
Payton filed this application 59 days after entry of the order he seeks to appeal. The
application is therefore untimely.
Second, an appeal may lie from an order denying or dismissing a motion to
correct a void sentence if the defendant raises a colorable claim that the sentence is,
in fact, void, but Payton has not raised such a claim. See Harper v. State, 286 Ga.
216, 217 n. 1 (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). Payton
does not contend that his sentence exceeded the statutory range of punishment;
instead, his challenge to his arrest warrant constitutes a challenge to the validity of
his conviction. A motion to vacate a judgment of conviction – which, in substance,
is what Payton filed here – “is not an appropriate remedy in a criminal case,” and any
appeal from an order denying or dismissing such a motion must be dismissed. See
Harper, 286 Ga. at 218 (1); see also Roberts v. State, 286 Ga. 532, 532 (690 SE2d
150) (2010). A challenge to a criminal conviction “may be considered only in a
traditionally recognized proceeding to challenge a criminal conviction,” including a
petition for habeas corpus. See Nazario v. State, 293 Ga. 480, 488 (2) (d) (746 SE2d
109) (2013); see also OCGA § 9-14-40 et seq.
Accordingly, this application is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/20/2019
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.