Rafael L. Jimenez v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 04, 2018

The Court of Appeals hereby passes the following order: A19A0439. RAFAEL L. JIMENEZ v. THE STATE.

In 2012, a jury found Rafael L. Jimenez guilty of trafficking in methamphetamine, and the trial court imposed a sentence of 30 years’ imprisonment. We affirmed Jimenez’s conviction on appeal. Lopez-Jimenez v. State, 317 Ga. App. 868 (733 SE2d 42) (2012). In 2017, Jimenez filed a motion to correct a void sentence, which the trial court denied. Jimenez then filed this direct appeal. We, however, lack jurisdiction. Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). Once, as here, this statutory period expires, a trial court may modify only a void sentence. Id. “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). In his motion, Jimenez claims that he should not have been sentenced to the maximum because it was his first felony conviction and he was not offered First Offender Status pursuant to OCGA § 42-8-66. He does not, however, raise a colorable claim that his sentences fall outside the statutory ranges of punishment. See

von Thomas, 293 Ga. at 572 (2); Jones, 278 Ga. at 670. Absent a colorable void- sentence claim, we lack jurisdiction over this appeal. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 10/04/2018 I certify that the abov e 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.