Marco Moses v. State ( 2024 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 15, 2024
The Court of Appeals hereby passes the following order:
A24A1809. MARCO MOSES v. THE STATE.
A jury found Marco Moses guilty of aggravated assault, aggravated assault with
a deadly weapon, and possession of a firearm during the commission of a felony, and
his convictions were affirmed on appeal. See Moses v. State, 328 Ga. App. 625 (760
SE2d 217) (2014). Years later, Moses filed an “Unopposed Extraordinary Motion for
New Trial or, in the Alternative, to Vacate and Modify Sentence.” In his motion,
Moses points to evidence at trial indicating he was not the actual shooter. He also
argues that his sentence is excessive given this evidence. Moses thus sought to have
the trial court vacate his 25-year sentence him and re-sentence him. The trial court
denied the motion, and Moses filed this direct appeal. We, however, lack jurisdiction.
An appeal from an order denying an extraordinary motion for new trial must be
made by filing an application for discretionary appeal. See OCGA § 5-6-35 (a) (7);
Balkcom v. State, 227 Ga. App. 327, 329 (489 SE2d 129) (1997). “Compliance with
the discretionary appeals procedure is jurisdictional.” Smoak v. Dept. of Human
Resources, 221 Ga. App. 257, 257 (471 SE2d 60) (1996). Thus, to the extent Moses
seeks to appeal the denial of his extraordinary motion for new trial, his failure to file
an application for discretionary appeal deprives us of jurisdiction over this direct
appeal.
To the extent Moses sought modification of his sentence, we are also without
authority to consider his appeal. 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, as here, that 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)
(citation and punctuation omitted). 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 OCGA § 17-10-1 (f). See id.; see also 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.”). Here, Moses does not argue that his sentence fell outside the permissible
range of sentencing. Since he has not raised a colorable void sentence claim, he is
unable to file a direct appeal of the trial court’s ruling.1 See Frazier, 302 Ga. App. at
348.
1
Moses’s motion is more in the nature of a request for clemency, which is
properly directed to the State Board of Pardons and Paroles. See Ga. Const. of 1983.
Art. IV, Sec. II, Par. II (a) (“Except as otherwise provided in this Paragraph, the State
Board of Pardons and Paroles shall be vested with the power of executive clemency,
including the powers to grant reprieves, pardons, and paroles; to commute penalties;
to remove disabilities imposed by law; and to remit any part of a sentence for any
offense against the state after conviction.”).
For these reasons, Moses’s appeal is hereby DISMISSED for lack of
jurisdiction. See Frazier, 302 Ga. App. at 348-349; Balkcom v. State, 227 Ga. App. at
332.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/15/2024
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.