Court of Appeals
of the State of Georgia
ATLANTA,____________________
April 21, 2016
The Court of Appeals hereby passes the following order:
A16A1365. WAYNE ANTHONY DAVIS v. THE STATE.
Wayne Anthony Davis was convicted in the Superior Court of Decatur County
of kidnapping (with bodily injury) and aggravated assault (family violence). He was
sentenced on May 9, 2012, to life imprisonment (for kidnapping with bodily injury)
and to twenty years imprisonment (for aggravated assault, family violence), to run
concurrently. Davis appealed. This Court affirmed his convictions for kidnapping and
aggravated assault. See Davis v. State, 330 Ga. App. 118 (1) (766 SE2d 566) (2014).
The Superior Court of Decatur County received and filed the remittitur on December
12, 2014.
On February 9, 2016, Davis filed pro se a “Motion to Reduce/Modify
Sentence,” arguing that he was held in jail without just cause for more than 72 hours
after his arrest in Liberty County, Florida, and that investigators gave false
information to the court. The trial court ruled that the allegations in Davis’s motion
to reduce his sentence could only be addressed by a petition for a writ of habeas
corpus and dismissed the motion. Davis then filed this direct appeal.
Under OCGA § 17-10-1 (f), a court may correct or reduce a criminal sentence
within one year of the date upon which the sentence was imposed, or within 120 days
after receipt by the sentencing court of the remittitur upon affirmance of the judgment
after direct appeal, whichever is later. In this case, Davis filed his motion more than
one year after the date upon which the sentences were imposed, and more than 120
days after receipt by the sentencing court of the remittitur upon affirmance on direct
appeal of the convictions and sentences. After the expiration of the period provided
in OCGA § 17-10-1 (f), the sentencing court has jurisdiction to modify a sentence
only if and to the extent the defendant’s motion to modify the sentence presents a
cognizable claim that the sentence was void, that is, that the sentence imposes
punishment the law does not allow. von Thomas v. State, 293 Ga. 569, 571 (2) (748
SE2d 446) (2013); Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).
Generally, a sentence that falls within the statutory range of punishment is not void.
von Thomas v. State, 293 Ga. at 571-572 (2); Jones v. State, 278 Ga. at 670.
In this case, Davis did not argue in his motion that the sentences imposed
exceed the statutory maximums or were otherwise void. Furthermore, the record
shows that the sentences imposed did not exceed the statutory maximums. See OCGA
§ 16-5-40 (d) (4) (“A person convicted of the offense of kidnapping shall be punished
by . . . [l]ife imprisonment or death if the person kidnapped received bodily injury.”);
OCGA § 16-5-21 (c) (Except as otherwise provided, “a person convicted of the
offense of aggravated assault shall be punished by imprisonment for not less than one
nor more than 20 years.”), (k) (“ If the offense of aggravated assault is committed
between past or present spouses, persons who are parents of the same child, parents
and children, stepparents and stepchildren, foster parents and foster children, or other
persons excluding siblings living or formerly living in the same household, the
defendant shall be punished by imprisonment for not less than three nor more than 20
years.”). Inasmuch as the assertions contained in Davis’s post-appeal, post § 17-10-1
(f) motion seeking sentence modification did not raise a colorable claim that the
sentences imposed were void, the trial court lacked jurisdiction to vacate or modify
his sentences. von Thomas v. State, 293 Ga. at 575 (3).
For the same reasons, Davis is not entitled to a direct appeal from the trial
court’s order dismissing his motion. von Thomas v. State, 293 Ga. at 575 (3); Jones
v. State, 278 Ga. at 670; Rooney v. State, 318 Ga. App. 385, 386 (734 SE2d 104)
(2012); Reynolds v. State, 272 Ga. App. 91, 95 (3) (611 SE2d 750) (2005). In
particular, rulings on pleadings asserting erroneous procedure or unfair treatment are
not subject to direct appeal because they are not rulings on whether the sentence is
void. Jones v. State, 278 Ga. at 670. Accordingly, this appeal is DISMISSED for lack
of jurisdiction.
Court of Appeals of the State of Georgia
04/21/2016
Clerk’s Office, Atlanta,____________________
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.