Wayne Leon Murray v. State

Court of Appeals of the State of Georgia

ATLANTA,__________________ December 13, 2012

The Court of Appeals hereby passes the following order: A13D0138. WAYNE LEON MURRAY v. THE STATE.

Wayne Leon Murray was found guilty of aggravated assault with intent to rape, attempted aggravated child molestation, two counts of child molestation, and two counts of cruelty to children in the first degree. This Court affirmed his convictions on September 11, 2008. Murray v. State, 293 Ga. App. 516 (667 SE2d 382) (2008). In November 2011, Murray filed a motion to correct a void and illegal sentence, in which he argued that some of the offenses should have been merged as a matter of fact. The trial court denied this motion on November 17, 2011. Nearly a year later, Murray filed this application for discretionary review. We lack jurisdiction on two grounds. First, a direct appeal lies from the denial of 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 v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Murray's merger argument, however, is a challenge to his convictions, not to his sentence. See Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010). Because he has not raised a valid void-sentence claim, Murray's appeal is subject to dismissal. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). Additionally, both an application for a discretionary appeal and a direct appeal must be filed within 30 days of entry of the order or judgment to be appealed. See OCGA §§ 5-6-35 (d), 5-6-38 (a). We lack jurisdiction to consider an untimely appeal. See Legare v. State, 269 Ga. 468, 469 (499 SE2d 640) (1998). Because Murray’s application was filed nearly a year after entry of the court’s order, we lack jurisdiction to consider it. Murray’s application is hereby DISMISSED.

Court of Appeals of the State of Georgia 12/13/2012 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.