Thomas v. the State ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 24, 2015
In the Court of Appeals of Georgia
A15A1514. THOMAS v. THE STATE.
MCFADDEN, Judge.
Frank James Thomas was convicted of burglary and sentenced to a term of
imprisonment as a recidivist. Years later, Thomas filed a motion to “vacate and
correct a void sentence,” arguing that he should not have been sentenced as a
recidivist because the state failed to introduce a true copy of the indictment for one
of his prior convictions and because the trial court failed to determine that the
probative value of his prior convictions outweighed their prejudicial effect. The trial
court denied his motion and Thomas filed this appeal. We, however, lack jurisdiction.
Accordingly, we dismiss this appeal.
Under OCGA § 17-10-1 (f), a sentencing 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, 347-348 (691 SE2d
247) (2010). Once this statutory period has expired, a sentencing court may modify
a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).
A direct appeal may lie from an order denying a motion to correct a void
sentence, but only if the defendant raises a colorable claim that the sentence is, in
fact, void. 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) (citations omitted). Claims challenging
the admissibility of evidence of prior convictions for recidivist sentencing purposes
do not amount to claims that the sentence imposed was void. Id. at 572-573 (2). As
Thomas has not raised a valid void sentence claim, we lack jurisdiction over this
appeal. Id. at 575 (3).
Appeal dismissed. Ellington, P. J., and Dillard, J., concur.
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