Victor B. Harris v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 30, 2016

The Court of Appeals hereby passes the following order: A17A0589. VICTOR B. HARRIS v. THE STATE.

In 2003, a jury found Victor Harris guilty of one count of aggravated child molestation and two counts of child molestation. The trial court imposed a 20-year prison term on the aggravated child molestation conviction, to be followed by concurrent 10-year prison terms on the remaining convictions. We affirmed Harris’s judgment of conviction in an unpublished opinion on direct appeal. Harris v. State, No. A05A1280 (Sept. 22, 2005). In July 2016, Harris filed a motion to correct an illegal and/or void sentence, arguing that the trial court erred by failing to consider on the record whether to exercise its discretion under OCGA § 17-10-6.2 (c) to impose sentences below the mandatory minimums. The trial court denied Harris’s motion, and he filed this direct appeal. We lack jurisdiction. A direct appeal may lie from an order denying a motion to vacate or correct a void sentence only if the defendant raises a colorable claim that the sentence is, in fact, void. See Harper v. State, 286 Ga. 216, 217, n. 1 (686 SE2d 786) (2009); 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). 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, Harris does not claim that his sentences fell outside the statutory range of punishments.1 Because Harris has not raised a valid void-sentence claim, we lack jurisdiction to consider his appeal, which is hereby DISMISSED. See Burg, 297 Ga. App. at 120.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/30/2016 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.

1 In any event, OCGA § 17-10-6.2 had not yet been enacted when Harris was convicted and sentenced in 2003 and thus does not apply here. See Ga. L. 2006, p. 379, § 21; Searcy v. State, 162 Ga. App. 695, 698 (2) (291 SE2d 557) (1982) (this Court applies the sentencing law in effect at the time the crime was committed).