Dale Scott Davies, Jr. v. State

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.