James Lamar Rice v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 18, 2017
The Court of Appeals hereby passes the following order:
A17D0223. JAMES LAMAR RICE v. THE STATE.
James Lamar Rice, acting pro se, filed this discretionary application seeking
review of the trial court’s orders denying his: (i) motion to vacate and set aside a void
judgment; and (ii) motion to modify sentence. In violation of this Court’s Rule 31 (e),
Rice has failed to include a copy of the motion to modify sentence. Based on his
motion to vacate and set aside a void judgment and the arguments raised in the instant
application, Rice appears to be contesting the sufficiency of the underlying indictment.1
In essence, Rice seeks to challenge his convictions. See Jones v. State, 290 Ga.
App. 490, 494 (2) (659 SE2d 875) (2008) (challenge to validity of indictment is
challenge to conviction, not sentence). But “a petition to vacate or modify a judgment
of conviction is not an appropriate remedy in a criminal case.” Harper v. State, 286
Ga. 216, 218 (1) (686 SE2d 786) (2009); see also Wright v. State, 277 Ga. 810, 811 (596
SE2d 587) (2004). Any appeal from an order denying or dismissing such a motion
must be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper,
supra at 218 (2).
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
1
Rice has included with this application neither the underlying indictment, nor
his judgment of conviction. Consequently, we cannot conclude from the materials
provided whether his motion to modify sentence was filed within a year of the
imposition of his sentence. See OCGA § 17-10-1 (f). The denial of a timely motion
to modify sentence under OCGA § 17-10-1 (f) is directly appealable. See, e. g.,
Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003).
or illegal. See Harper, supra at 217 (1), n. 1. “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). Rice does not
contend that any sentence falls outside of the applicable statutory range; he alleges that
his indictment was insufficient. Thus, he challenges the validity of his convictions, not
his sentence.
Because Rice may not attack his convictions in this manner and because he did
not assert a colorable void-sentence claim, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/18/2017
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.