Omar Jones v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 09, 2019
The Court of Appeals hereby passes the following order:
A20D0176. OMAR JONES v. THE STATE.
Omar Jones pleaded guilty to armed robbery and other charges in February
2018. In August 2019, Jones filed two pro se motions – a “Motion for State to Turn
Over Name and Badge Number of Sworn Grand Jury Bailiff Who Handled Above
Indictment” (“motion to disclose”) and a motion to correct a void sentence. The trial
court entered a single order denying both motions. Jones now seeks discretionary
review of that ruling. We, however, lack jurisdiction.
“It is incumbent upon this Court to inquire into its own jurisdiction, even when
not contested by the parties.” Massey v. State, 350 Ga. App. 427, 427 (1) (827 SE2d
921) (2019) (punctuation omitted). In determining whether we have jurisdiction over
the trial court’s disposition of Jones’s motions, we look to the substance of those
motions. See Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266 (491 SE2d 471)
(1997) (“[P]leadings, motions and orders are to be construed according to their
substance and function and not merely as to their nomenclature[.]”).
Motion to disclose. It is clear from Jones’s application brief that the purpose
of his motion to disclose was to challenge the legitimacy of his indictment, which he
argues was not delivered by a properly qualified bailiff. In essence, this is a challenge
to the validity of Jones’s convictions. See Garza v. State, 325 Ga. App. 505, 506 (1)
(753 SE2d 651) (2014) (arguments concerning grand jury irregularity are challenges
to validity of conviction). However, our Supreme Court has made clear that a motion
seeking to challenge an allegedly invalid or void judgment of conviction “is not one
of the established procedures for challenging the validity of a judgment in a criminal
case” and that an appeal from the denial of such a motion is subject to dismissal.
Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010).
Motion to correct a void sentence. Under OCGA § 17-10-1 (f), a court may
modify a sentence during the year after its imposition or within 120 days after
remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App.
346, 348 (691 SE2d 247) (2010). Once, as here, this statutory period expires, a trial
court may modify only a void sentence. Id. A sentence is void if the court imposes
punishment that the law does not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d
483) (2004). When a sentence falls within the statutory range of punishment, it is not
void and is not subject to modification beyond the time provided in § 17-10-1 (f).
See id. Moreover, an appeal does not lie from the denial of a motion to modify a
sentence filed outside the statutory time period unless the motion raises a colorable
claim that the sentence is, in fact, void. Frazier, 302 Ga. App. at 348.
Although Jones has not included a copy of his motion to correct a void
sentence with his application materials, it appears from his application brief that his
void-sentence argument is that his indictment was improper and therefore did not
establish the trial court’s jurisdiction over him. As with his motion to disclose, this
is a challenge to the validity of Jones’s convictions, not his sentence. See Munye v.
State, 342 Ga. App. 680, 686-687 (1) (b) (803 SE2d 775) (2017) (argument that trial
court lacked jurisdiction over criminal defendant is a challenge to conviction, not
sentence).
Because both of Jones’s motions were, in substance, improper collateral attacks
upon the validity of his convictions, the trial court’s denial of those motions is not
subject to appeal. See Harper v. State, 286 Ga. 216, 218 (1) and (2) (686 SE2d 786)
(2009). Thus, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/09/2019
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.