Curtis Lance Watson v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 03, 2017
The Court of Appeals hereby passes the following order:
A17A0799. CURTIS LANCE WATSON v. THE STATE.
In January 2013, Curtis Lance Watson pled guilty to possession of
methamphetamine with intent to distribute. On September 15, 2016, Watson filed a
“Motion for Consideration of Mitigating Circumstances” in which he asserted he
received ineffective assistance of counsel. According to Watson, his counsel rendered
ineffective assistance in agreeing to a banishment provision. Watson also asked the
trial court to reconsider the banishment provision. The trial court denied the motion,
and Watson appeals. We, however, lack jurisdiction.
Under OCGA § 17-10-1 (f), a sentencing court has the authority to modify a
sentence within one year of the date upon which the sentence is imposed, or within
120 days after receipt of the remittitur upon affirmance of the judgment after direct
appeal, whichever is later. Beyond this time, a sentencing court may only modify a
sentence that is void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).
A direct appeal may lie from an order denying a motion to vacate a void sentence
where 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, supra at 670.
Here, Watson argues that he received ineffective assistance of counsel, which
does not constitute a valid void sentence claim. “Assertions taking issue with the
procedure employed in imposing a valid sentence or questioning the fairness of an
imposed sentence do not allege a sentence is void and therefore are not a means for
post-appeal, post-§ 17-10-1 (f) sentence modification.” Jones, supra at 670; Jordan
v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002) (allegation of ineffective
assistance of counsel was not colorable void- sentence claim). Because Watson has
not raised a colorable void-sentence claim, we lack jurisdiction to consider his appeal.
See Burg, supra at 120. Accordingly, this appeal is hereby DISMISSED for lack of
jurisdiction
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/03/2017
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.