Samorial L. Hurst v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 07, 2018
The Court of Appeals hereby passes the following order:
A18A1151. SAMORIAL L. HURST v. THE STATE.
In 1999, a jury convicted Samorial Hurst of two counts of armed robbery. He
was sentenced to life without parole as a recidivist under OCGA § 17-10-7 because
he was convicted of three prior felonies. We affirmed his convictions on appeal. See
Hurst v. State, 260 Ga. App. 708 (580 SE2d 666) (2003). In 2014, Hurst filed a
“Motion to Correct Void Sentence” alleging he was improperly sentenced pursuant
to OCGA § 17-10-7, which the trial court denied. We dismissed his appeal as
untimely. See Hurst v. State, A17A0135 (Sept. 8, 2016). In 2017, Hurst filed a
“Motion to Vacate Void Sentence” again alleging that he was improperly sentenced
as a recidivist. The trial court denied the motion on November 7, 2017, and he filed
this direct appeal on December 28, 2017. We, however, lack jurisdiction for three
reasons.
First, this appeal is untimely. A notice of appeal must be filed within 30 days
of entry of the trial court order sought to be appealed. OCGA § 5-6-38 (a). The proper
and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction
on this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Hurst’s
notice of appeal, filed 51 days after entry of the order he seeks to appeal, is untimely.
Second, even if his appeal was timely, Hurst has failed to raise a colorable void
sentence claim. 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. See Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247)
(2010). Once this statutory period expires, a direct appeal may lie from an order
denying or dismissing a motion to correct a void sentence only if the defendant raises
a colorable claim that the sentence is, in fact, void or illegal. See Harper v. State, 286
Ga. 216, 217 (1) n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119
(676 SE2d 465) (2009). 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).
In his motion, Hurst argued that two of his prior convictions were consolidated
into one conviction under OCGA § 17-10-7 (d) because he was sentenced to
concurrent sentences on the same day in the same order. However, the record shows
that Hurst was indicted separately for offenses that occurred on different dates.
Although two of his sentences were made concurrent, they were made by separate
order. When “a defendant is charged for separate crimes, arising out of separate
incidents, and is sentenced for each crime in a separate order, those offenses are not
considered ‘consolidated’ under OCGA § 17-10-7 (d).” Becoats v. State, 318 Ga.
App. 262, 264 (2) (733 SE2d 795) (2012) (citation omitted).
A trial court can sentence a recidivist defendant to life imprisonment without
the possibility of parole for armed robbery. OCGA § 17-10-7 (b). Thus, Hurst’s
sentence of life in prison is not more severe than the law allows, and it is not void.
See Brown v. State, 295 Ga. App. 66, 67-68 (670 SE2d 867) (2008).
Third, Hurst argues that the trial court lacked subject matter jurisdiction due
to problems with his indictments. This argument challenges the validity of his
convictions, not his sentence. See Jones v. State, 290 Ga. App. 490, 494 (2) (659
SE2d 875) (2008). However, “a petition to vacate or modify a judgment of conviction
is not an appropriate remedy in a criminal case,” Harper, 286 Ga. at 218 (1), and any
appeal from an order denying such a motion must be dismissed, see id. at 218 (2).
For the reasons stated above, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
03/07/2018
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.