Herschel G. Byrd v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 23, 2018
The Court of Appeals hereby passes the following order:
A18A1591, A18A1592. HERSCHEL G. BYRD v. THE STATE (two cases).
In 2007 Herschel G. Byrd entered a negotiated guilty plea to a number of
charges, including involuntary manslaughter. In 2017, Byrd filed two virtually
identical motions to vacate a “void illegal sentence”, arguing that his convictions
were unconstitutionally vague, insufficient evidence supported his convictions, his
convictions violated the double jeopardy clause, and his prior convictions classifying
him as a recidivist were invalid. The trial court denied both motions in a single order,
and Byrd filed two direct appeals. We however, lack jurisdiction.
A direct 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 (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).
Assertions taking issue with the procedure employed in imposing the sentence do not
constitute colorable void-sentence claims. Coleman v. State, 305 Ga. App. 680, 680-
681 (700 SE2d 668) (2010).
Here, Byrd does not argue that his sentence falls outside the permissible
statutory range, but instead alleges various constitutional violations and challenges
his status as a recidivist. Such challenges do not raise a colorable void sentence
claim. See von Thomas, 293 Ga. at 572; Ward v. State, 299 Ga. App. 63, 64-65 (682
SE2d 128) (2009). Accordingly, because Byrd does not raise a valid void sentence
claim, Case Nos. A18A1591 and A18A1592 are hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/23/2018
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.