Robert L. Clark v. State

Court of Appeals of the State of Georgia

ATLANTA,__________________ October 09, 2013

The Court of Appeals hereby passes the following order: A14D0040. ROBERT L. CLARK v. THE STATE.

Robert L. Clark was convicted of rape, aggravated assault, false imprisonment, and battery in 2009. Clark’s convictions were affirmed by this Court. See Clark v. State, 302 Ga. App. 156 (690 SE2d 466) (2010). In July of 2013, Clarke filed a motion to vacate void judgment. The trial court denied the motion, and Clark filed an application for discretionary appeal. Clark argues in his motion that his sentence is void because the trial court illegally merged two of his convictions because the evidence was insufficient as to the merged conviction. This merger argument is a challenge to his convictions, not to his sentence. See Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010). “[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). Any appeal from an order denying or dismissing such a motion must be dismissed. See Harper, supra; Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). A direct appeal may lie from an order denying or dismissing a motion to correct a void sentence, however, if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper, supra at n.1; Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only when the trial court imposes punishment that the law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Here, Clark does not assert a valid void sentence claim. Because Clark is precluded from attacking his conviction and has not raised a colorable void-sentence claim, his appeal is DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 10/09/2013 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.