Tony E. Floyd v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 22, 2014

The Court of Appeals hereby passes the following order: A15A0633. TONY E. FLOYD v. THE STATE.

In 1987, Tony Floyd pled guilty to entering an automobile and was sentenced to four years, to be served concurrent with another conviction in a separate case. On August 28, 2014, Floyd filed a motion to vacate a void sentence, arguing that his conviction was supposed to be classified as a misdemeanor and not a felony. The trial court denied the motion, finding that the sentence length specifically shows the court’s intention to treat the conviction as a felony. Floyd appeals from that order. Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this statutory period expires, as it had here when Floyd filed his motion, a trial court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). 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 provides.” Von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). Here, Floyd’s sentence fell within the range allowed by law for a felony conviction of entering an automobile. Floyd does not dispute this fact. Rather, he contends he was wrongly convicted of a felony instead of a misdemeanor. This,

however, is a challenge to his conviction, not his sentence, and does not assert grounds upon which a sentence can be declared void. See Brown v. State, 297 Ga. App. 738 (678 SE2d 172) (2009). Because Floyd does not argue that his sentence exceeds the statutory maximum for his offense, he has not raised a colorable void sentence argument. Accordingly, Floyd’s appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 12/22/2014 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.