Melvin Harris v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 15, 2016
The Court of Appeals hereby passes the following order:
A16A1382. MELVIN HARRIS v. THE STATE.
In 2005, Melvin Harris was convicted of rape and possession of a firearm by
a convicted felon. His convictions were affirmed on appeal in Harris v. State, 283 Ga.
App. 374 (641 SE2d 619) (2007). In 2015, Harris filed a “Motion to Vacate Void and
Illegal Sentences” alleging, inter alia, that his sentence of life without parole for rape
is illegal because he had not been previously convicted of a “serious violent felony.”
The trial court dismissed the motion, and Harris filed this direct appeal.
A direct 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 or illegal. See Harper v. State, 286 Ga. 216, n.1 (686 SE2d 786) (2009); 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 applicable penal statute provides.” von Thomas v. State, 293 Ga. 569,
572 (2) (748 SE2d 446) (2013) (citations omitted).
Here, Harris was not sentenced as a recidivist based on a prior conviction for
a “serious violent felony” within the meaning of OCGA §§ 17-10-6.1 and 17-10-7
(b). Rather, Harris was sentenced as a recidivist under OCGA § 17-10-7 (a) and (c),
neither of which requires a prior conviction for a serious violent felony. Given
Harris’s numerous prior felony convictions, his life sentence for rape does not impose
punishment that the law does not authorize. See OCGA §§ 16-6-1 (b); 17-10-7 (a),
(c). Because Harris has not raised a colorable claim that his sentence is void, this
appeal is hereby DISMISSED for lack of jurisdiction. See von Thomas, supra at 575(3); Thomas v. State, 334 Ga. App. 4 (778 SE2d 18) (2015).
Court of Appeals of the State of Georgia
07/15/2016
Clerk’s Office, Atlanta,____________________
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.