Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 27, 2016
The Court of Appeals hereby passes the following order:
A16A1898. WILLIAM LEE TURNER v. THE STATE.
In 2012, William Lee Turner pled guilty to trafficking cocaine and illegal use
of a communication facility, for which he was sentenced to 30 years’ imprisonment
with 20 years to serve. Turner subsequently filed a pro se motion to correct a void
sentence. The trial court denied the motion on March 29, 2016, and Turner filed a
notice of appeal on May 2, 2016. We, however, lack jurisdiction for two reasons.
First, a notice of appeal must be filed within 30 days after entry of the
appealable order. See OCGA § 5-6-38 (a). The proper and timely filing of a notice
of appeal is an absolute requirement to confer jurisdiction on this Court. See
Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Because Turner filed
his notice of appeal 34 days after entry of the trial court’s order, his appeal is
untimely.
Second, pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a
sentence during the year after its imposition, or within 120 days after remittitur
following a direct appeal, whichever is later. Once this statutory period expires, a
trial court may only modify a void sentence. See Frazier v. State, 302 Ga. App. 346,
348 (691 SE2d 346) (2010). A direct appeal may lie from an order denying a motion
to vacate or correct a void sentence, but only if the defendant raises a colorable claim
that the sentence is, in fact, void. See 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). Thus, when a sentence is within the statutory range of
punishment, it is not void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483)
(2004). Accordingly, allegations that merely challenge the sentencing procedure or
question the fairness of a sentence do not raise a colorable claim of voidness and
cannot form the basis for a direct appeal. See Frazier, supra at 348. Here, Turner
does not argue that his sentence fell outside the permissible statutory range; but rather
he challenges his indictment. Thus, Turner has not raised a colorable void sentence
claim. Accordingly, we lack jurisdiction over this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
06/27/2016
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.