Xavier Geder v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 15, 2021
The Court of Appeals hereby passes the following order:
A21A0907. XAVIER GEDER v. THE STATE.
In 2017, Xavier Geder plead guilty to criminal attempt to commit murder, two
counts of aggravated assault, and possession of marijuana with intent to distribute,
and he was sentenced to 30 years’ incarceration followed by 30 years’ probation. In
2020, Geder filed a motion to modify his sentence, claiming prosecutorial
misconduct, due process violations, ineffective assistance of counsel, and that his plea
was not voluntary or intelligently made. Additionally, Geder requested that the trial
court modify his sentence to remove the requirement that he serve 30 years on
probation. The trial court denied Geder’s motion, and he has filed this direct appeal.
We 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 this statutory period expires, a trial court may modify only a void sentence. Id.A sentence is void if the court imposes punishment that the law does not allow. Jones
v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). When a sentence falls within the
statutory range of punishment, it is not void and is not subject to modification beyond
the time provided in § 17-10-1 (f). See id. Moreover, a direct appeal does not lie from
the denial of a motion to modify a sentence filed outside the statutory time period
unless the motion raises a colorable claim that the sentence is, in fact, void. Frazier,
302 Ga. App. at 348.
Geder’s claims do not call into question the validity of his sentence and
therefore do not state a valid void-sentence claim. See von Thomas v. State, 293 Ga.
569, 572 (2) (748 SE2d 446) (2013) (“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.”); Jones, 278 Ga. at 670. To the extent that Geder sought to
call into question the validity of his underlying convictions, “a petition to vacate or
modify a judgment of conviction is not an appropriate remedy in a criminal case,”
Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009), and any appeal from
an order denying or dismissing such a motion must be dismissed, see id. at 218 (2);
see also Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010).
For these reasons, we hereby DISMISS this appeal for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/15/2021
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.