Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 21, 2017
The Court of Appeals hereby passes the following order:
A18A0640. KERNIO DULCIO v. THE STATE.
In 2008, Kernio Dulcio was found guilty of multiple crimes, for which he was
sentenced to life in prison. Dulcio’s convictions were affirmed on appeal. Dulcio v.
State, 297 Ga. App. 600 (677 SE2d 758) (2009). In June of 2017, Dulcio filed a
“Motion to Dismiss Judgment and Indictment Based on Void Judgment,” which the
trial court denied. Dulcio then filed this direct appeal.
“[A] petition to vacate or modify a judgment of conviction is not an appropriate
remedy in a criminal case.” Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786)
(2009). The Supreme Court has explained that such a motion “is not one of the
established procedures for challenging the validity of a judgment in a criminal case.”
Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). Thus, any appeal from an
order denying or dismissing such a motion must be dismissed. Id.; Harper, 286 Ga.
at 218 (2). An appeal may lie from an order denying or dismissing a motion to
correct a void sentence if the defendant raises a colorable claim that the sentence is,
in fact, void or illegal. Harper, 286 Ga. at 217 (1), n. 1. Dulcio, however, has not
done so.
“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). Dulcio does not contend that his sentence exceeded the
statutory range of punishment; instead, he challenges the validity of his convictions.
Because Dulcio has not raised a colorable void-sentence claim, this appeal is hereby
DISMISSED for lack of jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/21/2017
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.