Dale Scott Davies, Jr. v. State ( 2017 )


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  • Court of Appeals
    of the State of Georgia
    ATLANTA,____________________
    October 26, 2017
    The Court of Appeals hereby passes the following order:
    A18D0135. DALE SCOTT DAVIES, JR. v. THE STATE.
    In 2013, Dale Scott Davies pled guilty to aggravated assault, robbery, burglary
    in the first degree, false imprisonment, and theft by taking. In May 2017, Davies filed
    a “Motion to Set Aside Void Judgment.” The trial court denied the motion, and Davies
    then filed this application for discretionary appeal. However, we lack jurisdiction.
    “[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); see also Wright v. State, 
    277 Ga. 810
    , 811 (596 SE2d 587) (2004). The
    Supreme Court has made clear that such a motion “is not one of the established
    procedures for challenging the validity of a judgment in a criminal case.” Roberts v.
    State, 
    286 Ga. 532
    , 532 (690 SE2d 150) (2010). Thus, any appeal from an order
    denying or dismissing such a motion must be dismissed. Id.; Harper, supra at 218
    (2). However, an appeal may lie from an order denying or dismissing a motion to
    correct a void sentence if the defendant raises a colorable claim that the sentence is,
    in fact, void or illegal. See Harper, supra at 217 (1), n. 1. Davies has not done so.
    “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). Here, Davies does not argue that his sentence exceeded
    legal limits; rather, he contends that due to problems with the indictment and grand jury
    proceedings, his convictions are void.          These arguments, however, constitute
    challenges to the validity of Davies’s convictions, not his sentence. See Jones v. State,
    
    290 Ga. App. 490
    , 493 (1) (659 SE2d 875) (2008) (challenge regarding indictment
    does not raise a valid void sentence claim). Accordingly, Davies’s appeal is hereby
    DISMISSED.
    Court of Appeals of the State of Georgia
    C l e r k ’ s                O f f i c e ,
    Atlanta,____________________
    10/26/2017
    I certif y 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.
    

Document Info

Docket Number: A18D0135

Filed Date: 11/14/2017

Precedential Status: Precedential

Modified Date: 11/14/2017