Marion Cordy v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 02, 2018
The Court of Appeals hereby passes the following order:
A19D0007. MARION CORDY v. THE STATE.
In 2000, a jury found Marion Cordy guilty of armed robbery, possession of a
firearm during the commission of the robbery, and possession of a firearm by a
convicted felon. The trial court sentenced Cordy to life in prison without parole. We
affirmed his convictions and sentence on direct appeal. See Cordy v. State, 257 Ga.
App. 726 (572 SE2d 73) (2002). In 2018, Cordy filed a motion to vacate void
sentence, 1 arguing that the trial court failed to follow the proper procedures in
assigning a new judge to his case. On May 1, 2018, the trial court denied Cordy’s
motion, and on July 11, 2018 he filed this application for discretionary review. We
lack jurisdiction for two reasons.
First, Cordy’s application is untimely. An application for discretionary appeal
must be filed within 30 days of the entry of the order or judgment to be appealed. See
OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-35 are jurisdictional, and this
Court cannot accept an application for appeal made beyond 30 days. See Boyle v.
State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Here, Cordy filed his application
71 days after the trial court entered its order.
Second, Cordy does not raise a valid void sentence claim. 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. See
Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). Once this statutory
1
We affirmed the trial court’s denial of a different motion to vacate void
sentence that raised different issues in Cordy v. State, Case No. A15A0609 (decided
Feb. 3, 2015).
period expires, an appeal may lie from an order denying a motion to vacate or correct
a void sentence 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 (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). 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).
Here, Cordy does not argue that his sentence falls outside the permissible
statutory range, but instead challenges the procedures employed by the trial court.
Such a challenge does not raise a colorable void sentence claim. See Coleman v.
State, 305 Ga. App. 680, 680-681 (700 SE2d 668) (2010); Ward v. State, 299 Ga. App.
63, 64-65 (682 SE2d 128) (2009). And, to the extent Cordy challenges his conviction,
a post-conviction motion seeking to vacate an allegedly void criminal conviction is not
one of the established procedures for challenging the validity of a judgment in a
criminal case, and an appeal from the trial court’s ruling on such a motion should be
dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010).
Accordingly, for the reasons stated above, this application is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/02/2018
I certify that the above i s 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.