Rafael L. Jimenez v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
October 04, 2018
The Court of Appeals hereby passes the following order:
A19A0439. RAFAEL L. JIMENEZ v. THE STATE.
In 2012, a jury found Rafael L. Jimenez guilty of trafficking in
methamphetamine, and the trial court imposed a sentence of 30 years’ imprisonment.
We affirmed Jimenez’s conviction on appeal. Lopez-Jimenez v. State, 317 Ga. App.
868 (733 SE2d 42) (2012). In 2017, Jimenez filed a motion to correct a void sentence,
which the trial court denied. Jimenez then filed this direct appeal. We, however, 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.
“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).
In his motion, Jimenez claims that he should not have been sentenced to the
maximum because it was his first felony conviction and he was not offered First
Offender Status pursuant to OCGA § 42-8-66. He does not, however, raise a
colorable claim that his sentences fall outside the statutory ranges of punishment. See
von Thomas, 293 Ga. at 572 (2); Jones, 278 Ga. at 670. Absent a colorable void-
sentence claim, we lack jurisdiction over this appeal. Accordingly, this appeal is
hereby DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
10/04/2018
I certify that the abov e 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.