Adrian B. Payton v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 20, 2015

The Court of Appeals hereby passes the following order: A16D0062. ADRIAN B. PAYTON v. THE STATE.

Adrian Payton filed an application for discretionary appeal from the superior court’s order of September 1, 2015, denying his motion to correct an illegal sentence.1 From the limited information included with the application materials, Payton has not established that we have jurisdiction to consider his application. 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). Payton, however, did not provide any information in his application materials that identified the crime for which he was convicted or the date of said conviction. If Payton’s conviction was entered within a year of the filing of his motion, Payton would have a right of direct appeal from its denial. See OCGA § 17-10-1 (f); Bowen v. State, 307 Ga. App. 204 (704 SE2d 436) (2010); Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008). Otherwise, only a colorable claim that the sentence is, in fact, void or illegal would warrant appellate review. 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). Here, Payton has neither established that he is entitled to a direct appeal nor has he set forth any argument that his sentence is void.

1 In violation of Court of Appeals Rule 31 (b), Payton did not include a copy of the motion he filed that led to the order he seeks to appeal. He also did not include a copy of his underlying judgment of conviction.

Ultimately, the limited materials included with Payton’s application do not present us with a valid basis to consider his request for appellate review. Accordingly, this application is hereby DISMISSED.

Court of Appeals of the State of Georgia 10/20/2015 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.