Rufaro Smith v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 22, 2019
The Court of Appeals hereby passes the following order:
A19A1005. RUFARO SMITH v. THE STATE.
Rufaro Smith was convicted of armed robbery and other crimes, and we
affirmed his convictions on appeal. Smith v. State, 337 Ga. App. XXIX (Case No.
A19A0833, decided June 8, 2016). In 2018, Smith filed a “Motion to Vacate Sentence
and Exercise Constitutional Right,” which the trial court treated as a motion for
sentence modification and denied. Smith now appeals.
An appeal may lie from an order denying a motion to vacate or correct a void
sentence, but only if the defendant raises a colorable claim that the sentence is, in
fact, void. See Harper v. State, 286 Ga. 216, 217 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). Thus, 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).
In his motion to vacate, Smith did not argue that his sentences exceeded the
permissible statutory ranges. Instead, he claimed that he was the victim of police
misconduct, his arrest was illegal, the grand jury proceedings were flawed, and the
trial court lacked jurisdiction to sentence him. These are challenges to the validity of
Smith’s convictions, not his sentence. However, a motion to vacate a conviction is not
one of the established procedures for challenging the validity of a judgment in a
criminal case, and an appeal from an order denying such a motion must be dismissed.
See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper v. State, 286 Ga.
216, 218 (1) (686 SE2d 786) (2009). In the absence of a colorable void-sentence
claim, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/22/2019
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.