Sullivan Green, III v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 28, 2018
The Court of Appeals hereby passes the following order:
A19A0625. SULLIVAN GREEN, III v. THE STATE.
In 2004, Sullivan Green, III was convicted of several offenses, including two
counts of armed robbery. We affirmed his convictions on direct appeal. Green v.
State, 287 Ga. App. 248 (651 SE2d 174) (2007). In 2018, Green filed a “motion to
vacate void judgment and sentence.” The trial court denied his motion on August 1,
2018, and on September 11, 2018 Green filed this appeal. We, however, lack
jurisdiction.
First, Green’s appeal is untimely. A notice of appeal must be filed within 30
days after entry of an appealable order. 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). Here, Green
filed his notice of appeal 41 days after the entry of the trial court’s order.
Second, Green does not raise a valid void-sentence claim. 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 only modify a void sentence. Id. And 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 Burg v.
State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). 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).
Here, Green argues that the trial court did not follow the proper procedure in
sentencing him as a recidivist. However, “[a]ssertions taking issue with the
procedure employed in imposing a valid sentence . . . do not allege a sentence is
void[.]” Coleman v. State, 305 Ga. App. 680, 680-681 (700 SE2d 668) (2010)
(punctuation omitted). And Green’s consecutive life sentences were within the
statutory range of punishment for armed robbery. See OCGA § 16-8-41 (b); Rooney
v. State, 287 Ga. 1, 3-6 (3) (690 SE2d 804) (2010) (a trial court has discretion to
impose consecutive or concurrent sentences for separate offenses, as long as the
sentence for each offense is within the statutory limits).
To the extent Green challenges his convictions, the 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).
Thus, Green is not authorized to collaterally attack his conviction in this manner. See
id.; Harper v. State, 286 Ga. 216, 218 (1), (2) (686 SE2d 786) (2009); Matherlee v.
State, 303 Ga. App. 765, 766 (694 SE2d 665) (2010).
Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/28/2018
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.