Larry King v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ October 04, 2018

The Court of Appeals hereby passes the following order: A19A0441. LARRY KING v. THE STATE.

A jury found Larry King guilty of armed robbery and burglary, and he was sentenced as a recidivist to life in prison without parole. King appealed, and his conviction and sentence were affirmed on appeal. See King v. State, 258 Ga. App. 872 (575 SE2d 679) (2002). Years later, King filed a motion challenging his sentence as void. King argued that the prior offense used to enhance his sentence was committed when he was a juvenile and thus should not have been used in recidivist sentencing. The trial court denied the motion, and King appeals. 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). A challenge to the factual predicates underlying the prior conviction used in recidivist sentencing does not constitute a valid void sentence argument. See id.; Kimbrough v. State, 325 Ga. App. 519, 522 (1) (754 SE2d 109) (2014).

Here, King challenges the validity of his prior conviction. Because this is not a colorable void-sentence argument, 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 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.