Ricardo Jermaine Carlyle v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ April 16, 2020

The Court of Appeals hereby passes the following order: A20A1427. RICARDO JERMAINE CARLYLE v. THE STATE.

In 2009, Ricardo Jermaine Carlyle plead guilty to cocaine possession, and he was sentenced as a recidivist to 30 years with 20 years to serve in prison and 10 years to serve on probation. Years later, Carlyle filed a motion to vacate a void sentence, arguing that two of his prior felony sentences were entered on the same day and should be considered a single conviction for recidivist purposes.1 The trial court denied the motion, and Carlyle 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

1 “Where a defendant is charged for separate crimes, arising out of separate incidents, and is sentenced for each crime in a separate order, those offenses are not considered consolidated[.]” See Becoats v. State, 318 Ga. App. 262, 264 (2) (733 SE2d 795) (2012).

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, Carlyle seeks to challenge the validity of his prior convictions. 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,____________________ 04/16/2020 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.