Torrey N. Borders v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 12, 2016
The Court of Appeals hereby passes the following order:
A16A2035. TORREY N. BORDERS v. THE STATE.
In 2004, Torrey N. Borders was convicted by a jury of three counts of
aggravated child molestation, aggravated sexual battery, four counts of child
molestation, and criminal solicitation to commit murder, for which he was sentenced
to a total of sixty-five years with forty-five years to serve in prison. Borders’s
convictions were affirmed on appeal in an unpublished opinion. See Borders v. the
State, Case No. A15A2189 (decided February 17, 2016). In 2016, Borders filed a
“Motion to Vacate illegal and void sentence.” The trial court denied the motion and
Borders filed this direct appeal. We, however, 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). Any
appeal from an order denying or dismissing such a motion must be dismissed.
Harper, supra at 218 (2); Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010).
A direct appeal may lie from an order denying a motion to vacate or correct a void
sentence, but only if the defendant raises a colorable claim that the sentence is, in
fact, void. Harper, supra at 217 n.1; 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). Thus, 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, Borders does not argue that his sentence exceeded legal limits; rather, he
claims that the trial court lacked subject matter jurisdiction because the indictment
charging him with aggravated sexual battery failed to alleged venue. This argument,
however, constitutes a challenge to the validity of Borders’s conviction, 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). Because
Borders has not raised a colorable void-sentence claim, this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
08/12/2016
Clerk’s Office, Atlanta,____________________
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.