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Ollie McNair v. State
Court of Appeals of the State of Georgia
ATLANTA,____________________ August 24, 2017
The Court of Appeals hereby passes the following order: A18A0138. OLLIE MCNAIR v. THE STATE.
In 1998, a jury found Ollie McNair guilty of possession of cocaine with intent to distribute, tampering with evidence, and obstruction of an officer. McNair’s convictions were affirmed on appeal. McNair v. State, 240 Ga. App. 324 (523 SE 2d 392) (1999). In May 2017, McNair filed a “Motion to Set Aside Void Judgment,” pursuant to OCGA § 9-11-60, asserting the arrest warrant was not supported by probable cause. The trial court denied the motion, noting that OCGA § 9-11-60 is not applicable in this context. McNair then filed this direct appeal. Although a direct appeal may lie from an order denying or dismissing a motion to correct a void sentence, a defendant must first raise a colorable claim that the sentence is, in fact, void or illegal. Harper v. State, 286 Ga. 216, 216 n.1 (686 SE2d 786) (2009); 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, McNair does not assert that the trial court imposed a sentence the law does not allow. Rather, he takes issue with the legality of his underlying convictions. The Supreme Court has made clear, however, that a motion seeking to challenge an allegedly invalid or void judgment of conviction “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). An appeal from an order denying or dismissing such a petition or motion must be dismissed. See id.; Harper, 286 Ga. at 218 (2). Accordingly, McNair’s appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/24/2017 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.