David Leon Kirkland v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 14, 2018
The Court of Appeals hereby passes the following order:
A18A1690. DAVID LEON KIRKLAND v. THE STATE.
David Kirkland was convicted of armed robbery and sentenced to life without
the possibility of parole, and his conviction was affirmed on appeal. See Kirkland v.
State, 315 Ga. App. 143 (726 SE2d 644) (2012). In January 2018, he filed a “motion
to vacate void and illegal sentence,” arguing that he was illegally sentenced as a
recidivist. The trial court denied the motion, and Kirkland then filed this appeal. We,
however, lack jurisdiction.
A direct appeal may lie from an order denying or dismissing a motion to vacate
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).
Kirkland contends that his sentence is void because the trial court improperly
sentenced him to life without parole without first seeking the death penalty and filing
the appropriate notice as required under OCGA § 17-10-16 (a). As noted by the trial
court, however, Kirkland was not sentenced under § 17-10-16 (a). Rather, because
Kirkland had at least three prior felonies at the time he committed the armed robbery
offense, the trial court was authorized to sentence him under OCGA § 17-10-7 (c) as
a recidivist and impose a life sentence without the possibility of parole. See OCGA
§ 17-10-7 (c) (holding that a person having been convicted of three or more felonies
shall be sentenced to serve the maximum time for a subsequent offense without
eligibility for parole).
Moreover, Kirkland has already filed a motion raising the same argument, and
this Court dismissed his appeal from the trial court’s denial of that motion. See
A18A0094 (Dismissed on August 18, 2017). We are, therefore, precluded from
revisiting the issue. See Paradise v. State, 321 Ga. App. 371, 373 (740 SE2d 238)
(2013) (“Although a void sentence may be challenged at any time, ‘this important
legal principle is, nevertheless, subject to the equally well established principles of
res judicata and the law-of-the-case rule once the issue has been raised and ruled
upon.’”); Ross v. State, 310 Ga. App. 326, 328 (713 SE2d 438) (2011) (while void
sentence is nullity and may be vacated at any time, it is still subject to res judicata and
law-of-the-case rule; defendant “not entitled to multiple bites at the apple”).
For the reasons stated above, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/14/2018
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.