Kennedy Smith v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 18, 2014

The Court of Appeals hereby passes the following order: A15A0015. KENNEDY SMITH v. THE STATE.

After a jury trial, Kennedy Smith was convicted of burglary, kidnapping, rape, and two counts of robbery. He was sentenced to serve 90 years, 20 years each on the burglary, kidnapping, and rape counts, and 15 years each on the robbery counts. Smith’s convictions were affirmed on appeal. See Kennedy v. State, 287 Ga. App. 222 (651 SE2d 133) (2007). In 2014, Smith filed a motion to set aside a void sentence, challenging the trial court’s authority to impose consecutive terms of sentence. On June 5, 2014, the trial court denied the motion, and Smith filed his notice of appeal on July 11, 2014. We lack jurisdiction. To be timely, a notice of appeal must be filed within 30 days after entry of the appealable order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. See Rowland v. State, 264 Ga. 872 (1) (452 SE2d 756) (1995). Because Smith did not file his notice of appeal until 35 days after entry of the order he seeks to appeal, his appeal is untimely. Even if Smith had filed a timely notice of appeal, this appeal would be subject to dismissal. Although a direct appeal may lie from an order denying a motion to correct a void sentence, a defendant must raise 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). Here, however, Smith’s argument that the trial court was not authorized to impose consecutive sentences on each count is controlled adversely to him by Jones v. State, 271 Ga. App. 830, 831 (610 SE2d 570) (2005). Accordingly, this is not a valid void sentence

claim. For these reasons, we therefore DISMISS Smith’s direct appeal for lack of jurisdiction.

Court of Appeals of the State of Georgia 09/18/2014 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.