Charles Thomas v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 27, 2018

The Court of Appeals hereby passes the following order: A19A0644. CHARLES THOMAS v. THE STATE.

In 1997, Charles Thomas pleaded guilty to aggravated battery, two counts of aggravated assault, two counts of criminal attempt to commit aggravated sexual battery, and false imprisonment. He was sentenced as a recidivist to 30 years’ imprisonment without the possibility of parole. Thomas’s convictions were affirmed on appeal. Thomas v. State, 234 Ga. App. 652 (507 SE2d 523) (1998). In November 2017, Thomas filed a “Motion to Vacate, Set Aside, or Correct Sentence,” arguing that he was improperly sentenced as a recidivist because the State improperly introduced a prior conviction that had been expunged. The trial court dismissed Thomas’s motion, and he filed this direct appeal. We, however, lack jurisdiction. “[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); see also Wright v. State, 277 Ga. 810, 811 (596 SE2d 587) (2004). Any appeal from an order denying or dismissing such a motion must be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010); Harper, 286 Ga. at 218 (2). However, a direct appeal may lie from an order denying a motion to vacate or correct a void sentence after the statutory period of OCGA § 17-10-1 (f) expires, but only if the defendant raises a colorable claim that the sentence is, in fact, void. Harper, 286 Ga. at 217 n.1; Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). “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 provides.” von

Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). Thus, when a sentence is within the statutory range of punishment, it is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). Here, Thomas does not argue that his sentence exceeded legal limits; rather, he claims that the State should not have used a prior conviction that had been expunged to enhance his sentence. However, a challenge to the prior conviction used in recidivist sentencing does not constitute a valid void-sentence argument. See von Thomas v. State, 293 Ga. at 572 (2). Thus, Thomas has not raised a colorable void- sentence argument, and this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/27/2018 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.