Kernio Dulcio v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 21, 2017

The Court of Appeals hereby passes the following order: A18A0640. KERNIO DULCIO v. THE STATE.

In 2008, Kernio Dulcio was found guilty of multiple crimes, for which he was sentenced to life in prison. Dulcio’s convictions were affirmed on appeal. Dulcio v. State, 297 Ga. App. 600 (677 SE2d 758) (2009). In June of 2017, Dulcio filed a “Motion to Dismiss Judgment and Indictment Based on Void Judgment,” which the trial court denied. Dulcio then filed this direct appeal. “[A] petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009). The Supreme Court has explained that such a motion “is not one of the established procedures for challenging the validity of a judgment in a criminal case.” Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). Thus, any appeal from an order denying or dismissing such a motion must be dismissed. Id.; Harper, 286 Ga. at 218 (2). An appeal may lie from an order denying or dismissing a motion to correct a void sentence if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. Harper, 286 Ga. at 217 (1), n. 1. Dulcio, however, has not done so. “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). Dulcio does not contend that his sentence exceeded the

statutory range of punishment; instead, he challenges the validity of his convictions. Because Dulcio has not raised a colorable void-sentence claim, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/21/2017 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.