Kyle Richard Bishop III v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 26, 2017

The Court of Appeals hereby passes the following order: A17A1769. KYLE RICHARD BISHOP, III v. THE STATE.

In October 2000, a jury found Kyle Richard Bishop, III guilty of child molestation, two counts of aggravated child molestation, and aggravated sexual battery, and his convictions were affirmed on appeal. See Bishop v. State, 252 Ga. App. 211 (555 SE2d 504) (2001). In October 2015, Bishop filed a motion to vacate a void sentence. The trial court denied the motion, and Bishop filed this appeal. A direct appeal may lie from an order denying or dismissing a motion to vacate a void sentence, but 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). A sentence is void only if it imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (1) (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, Bishop argues that the trial court erred in failing to follow the strictures of OCGA § 17-10-6.2 (b) in imposing his sentence. OCGA § 17-10-6.2 was first enacted in 2006, however, and has no bearing on the trial court’s sentencing of Bishop. See Richardson v. State, 334 Ga. App. 344, 347 (1) (779 SE2d 406) (2015) (“Because OCGA § 17-10-6.2 was not in effect when [Bishop] committed the charged crime[s], the trial court committed no error in failing to apply its provisions[.]”).

Accordingly, this argument does not present a colorable void sentence claim. In other arguments, Bishop suggests that his punishment was unduly harsh or that the offenses should have merged for sentencing purposes.1 Bishop does not, however, contend that his sentences exceeded the maximum allowed by law. Accordingly, he has not raised a valid void sentence claim. See Von Thomas, supra; see Williams v. State, 287 Ga. 192, 193 (695 SE2d 244) (2010) (a merger argument does not constitute a valid void sentence claim). Because Bishop has not raised a colorable argument that his sentence is void, the trial court’s denial of his motion is not subject to direct appeal. Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/26/2017 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.

1 The trial court sentenced Bishop to 20 years to serve for child molestation; 30 years to serve for aggravated child molestation; 30 years with 10 to serve on a second count of aggravated child molestation; and 20 years with 10 to serve consecutive to count 1 for aggravated sexual battery.