Stacy B. Bohannon v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 20, 2018
The Court of Appeals hereby passes the following order:
A19A0828. STACY B. BOHANNON v. THE STATE.
On August 4, 2016, Stacy B. Bohannon entered a guilty plea to home invasion
and kidnapping.1 In September 2018, Bohannon filed a motion to reduce/modify his
sentence, arguing that he received ineffective assistance, that his sentence was unfair,
and that he should have been charged with false imprisonment rather than
kidnapping. The trial court denied the motion, and Bohannon filed this appeal. We
lack jurisdiction.
Under OCGA § 17-10-1 (f), a sentencing court has the authority to modify a
sentence within one year of the date upon which the sentence is imposed, or within
120 days after receipt of the remittitur upon affirmance of the judgment after direct
appeal, whichever is later. Beyond this time, a sentencing court may only modify a
sentence that is void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).
A direct appeal may lie from an order denying a motion to vacate a void sentence
where the defendant raises a colorable claim that the sentence is, in fact, void. See
Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010); 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
1
A count for armed robbery was merged into the home invasion conviction,
and the State entered an order of nolle prosequi with respect to a count for possession
of a firearm by a convicted felon.
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, supra at 670.
Here, Bohannon does not assert that his sentence was void. Although
Bohannon contends he received ineffective assistance and that his sentence was
unfair, these do not constitute valid void sentence claims. See Jones, supra at 670;
Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002) (allegation of
ineffective assistance of counsel was not colorable void sentence claim). Accordingly,
we lack jurisdiction to consider this appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/20/2018
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.