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Arthur Wells v. State
Court of Appeals of the State of Georgia
ATLANTA,__________________ November 27, 2013
The Court of Appeals hereby passes the following order: A14D0114. ARTHUR WELLS v. THE STATE.
Arthur Wells was convicted of interference with government property, and his conviction was affirmed on appeal. See Wells v. State, 265 Ga. App. 245 (593 SE2d 710) (2004). Wells subsequently filed a motion to vacate an unconstitutional and void sentence, which the trial court denied. Wells filed an application for discretionary appeal from this ruling.1 There is no provision of OCGA § 5-6-35 (a) that requires an application for discretionary appeal from a trial court’s order denying a motion to vacate an allegedly void sentence. If an applicant applies for discretionary review of a directly appealable order, we grant the application under OCGA § 5-6-35 (j). Here, however, Wells does not have a right of direct appeal. An appeal may lie from an order denying 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 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (a) (409 SE2d 517) (1991). “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
1 Wells filed his application in the Supreme Court, which transferred the case to this Court.
provides.” Von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). Wells contends that his sentence is void because it is excessive, but a person who commits the offense of interference with government property may be imprisoned “for not less than one nor more than five years. OCGA § 16-7-24 (a). Wells was sentenced to four years. Therefore, Wells’s sentence was within the statutory range, and we may not consider his application. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper, supra. Accordingly, this application is hereby DISMISSED.
Court of Appeals of the State of Georgia 11/27/2013 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.