James Dandy Uyanna v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 01, 2018
The Court of Appeals hereby passes the following order:
A19D0088. JAMES DANDY UYANNA v. THE STATE.
James Dandy Uyanna pled guilty to financial card fraud. According to Uyanna,
he filed a motion to contest his conviction on the basis that his trial counsel failed to
inform him of the immigration consequences of his plea.1 The trial court entered an
“Order Denying Defendant’s Motion to Vacate Sentence” on June 18, 2018. On July
25, 2018, Uyanna filed an application for discretionary appeal to the Supreme Court,
which transferred the application to this Court. See Case No. S18D1632 (transferred
August 23, 2018). We, however, lack jurisdiction.
First, an application for discretionary appeal must be filed within 30 days of
entry of the order to be appealed. OCGA § 5-6-35 (d). The requirements of OCGA
§ 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not
made in compliance therewith. Boyle v. State, 190 Ga. App. 734 (380 SE2d 57)
(1989). Because Uyanna filed his discretionary application in the Supreme Court 37
days after the trial court issued its order, his application is untimely.
Second, even if Uyanna’s application had been timely filed, this Court would
still lack jurisdiction. “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).
1
Uyanna has not included a copy of the motion with his application, as is
required by Court of Appeals Rule 31 (e).
Uyanna has not raised that claim. Moreover, to the extent that Uyanna’s motion
could be construed as seeking to vacate or modify his convictions, “a petition to
vacate or modify a judgment of conviction is not an appropriate remedy in a criminal
case,” id. at 218 (1), 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, we lack jurisdiction to consider
Uyanna’s application, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/01/2018
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.