Gerardo Guerrero-Rico v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
December 31, 2018
The Court of Appeals hereby passes the following order:
A19A0721. GERARDO GUERRERO-RICO v. THE STATE.
In 2014, Gerardo Guerrero-Rico pled guilty to trafficking in methamphetamine,
and the trial court imposed a sentence of 15 years in prison, to be followed by 5 years
on probation. In 2016, we issued a decision affirming the trial court’s rulings denying
several post-conviction motions filed by Guerrero-Rico, and our remittitur was
received by the trial court in June 2016. See Guerrero-Rico v. State, No. A16A1361
(June 9, 2016).
In July 2018, Guerrero-Rico filed a motion to correct an illegally imposed
sentence, which the trial court denied. Guerrero-Rico then filed this direct appeal.
We lack jurisdiction.
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, a direct
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.
In his motion to correct an illegally imposed sentence, Guerrero-Rico argued
that his conviction is invalid due to improper venue. That contention, however,
which challenges the validity of his underlying conviction, does not state a colorable
void-sentence claim. See von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446)
(2013) (“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.”). To the
extent that Guerrero-Rico’s motion could be construed as a motion to vacate his
conviction, “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), and any appeal from an order denying or dismissing such a motion
must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 (690
SE2d 150) (2010).
For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.
See Frazier, 302 Ga. App. at 348-349.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
12/31/2018
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.