Donald F. Hug v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 09, 2021
The Court of Appeals hereby passes the following order:
A21A0862. DONALD F. HUG v. THE STATE.
Donald F. Hug was convicted of two counts of aggravated assault in 1991 and
sentenced to 40 years’ incarceration. In 2019, Hug filed a motion to correct a void
sentence, claiming that there were problems with his indictment. The trial court
denied Hug’s motion. Hug 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.
Hug’s challenge to his indictment does not call into question the validity of his
sentence and therefore does 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 Hug 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,____________________
02/09/2021
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.