Walter Luther Bagby v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 19, 2018

The Court of Appeals hereby passes the following order: A18A2003. WALTER LUTHER BAGBY v. THE STATE.

In 2002, Walter Luther Bagby was convicted of aggravated child molestation (Count 1), child molestation (Count 2), and incest (Count 3). The trial court sentenced Bagby to: 30 years for Count 1, to be served consecutively to any other time being served; 20 years for Count 2, consecutive to the sentence in Count 1; and 20 years for Count 3, concurrent with the sentence in Count 1. In 2018, Bagby filed a motion to vacate a void and illegal sentence, arguing that the trial court improperly imposed a consecutive sentence, and that his sentence for child molestation exceeded the statutory minimum. The trial court denied Bagby’s motion, and Bagby filed this direct appeal. We, however, 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, Bagby’s sentence was within the statutory range of punishment. The trial court was empowered to impose a consecutive sentence. See Waye v. State, 301 Ga. 469, 472 (III) (801 SE2d 818) (2017) (Georgia Law “expressly permits the imposition

of a consecutive sentence on a subsequent conviction.”); OCGA § 17-10-10 (b). And Bagby’s sentence for child molestation, at the time of his conviction, was within the statutory range of punishment. See OCGA § 16-6-4 (2001) (“A person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years.”). Accordingly, because Bagby does not raise a valid void-sentence claim, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/19/2018 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.