Mark Victor Walton v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 29, 2017

The Court of Appeals hereby passes the following order: A18A0048. MARK VICTOR WALTON v. THE STATE.

In 1996, a jury found Mark Victor Walton guilty of armed robbery, kidnapping, and possession of a knife during the commission of a felony, for which he was sentenced to life imprisonment without the possibility of parole. Walton’s convictions were affirmed on appeal. Walton v. State, 242 Ga. App. 639 (530 SE2d 531) (2000). In May 2017, Walton filed a “Motion to Correct Null and Void/Illegal Sentences Pursuant to [OCGA] § 17-9-4.” On May 30, 2017, the trial court denied Walton’s motion. Walton then filed a notice of appeal on June 30, 2017. We, however, lack jurisdiction for two reasons. First, a notice of appeal must be filed within 30 days of entry of the order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction on this Court. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Because Walton filed his notice of appeal 31 days after entry of the trial court’s order, his appeal is untimely. Second, 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. 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). Walton argues in his motion to correct void sentences that: (i) the trial court failed to exercise its discretion to impose sentences below the statutory maximums; (ii) the state failed to provide clear notice of its intent to use prior convictions in aggravation; (iii) the state did not inform him of a new statute allowing for a sentence of life without parole; and (iv) his conviction for kidnapping should be vacated. Walton, however, does not claim that his sentences fell outside the statutory range of punishments. Furthermore, as to Walton’s notice arguments, “[s]uch notice requirements are procedural and not substantive in nature. And the failure to adhere to such procedures . . . does not render sentences imposed without such procedures ‘void’ so as to secure direct appellate review subsequent to the first appeal.” Ward v. State, 299 Ga. App. 63, 64-65 (682 SE2d 128) (2009) (punctuation and citations omitted); see also von Thomas, supra at 572-573 (2). Finally, as to the kidnapping argument, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case,” Harper, 286 Ga. at 218 (1), and any appeal from an order denying or dismissing such a motion must be dismissed, see id. at 218 (2); see also Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). Because Walton has not raised a valid void-sentence claim, he is not entitled to a direct appeal. For these reasons, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 08/29/2017 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.