Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 10, 2021
The Court of Appeals hereby passes the following order:
A21A0943. JESUS VIEYRA v. THE STATE.
Jesus Vieyra was charged with numerous crimes, including rape. In 2016,
Vieyra pleaded guilty to three offenses, including family violence aggravated assault
with intent to rape. As a special condition of probation, Vieyra was required to
register as a sex offender. After several failed attempts to challenge his plea,1 Vieyra
filed in November 2020 a motion to correct a void condition of probation challenging
the requirement that he register as a sex offender. The trial court denied the motion,
and Vieyra appeals this ruling.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period expires, a trial court may only modify a void
sentence. Id. A sentence is void if the court imposes punishment that the law does not
allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). Moreover, a direct
appeal does not lie from the denial of a motion to correct a void sentence filed outside
the statutory time period unless the motion raises a colorable claim that the sentence
is, in fact, void. Frazier, 302 Ga. App. at 348.
1
Vieyra sought to appeal the denial of an out-of-time appeal, which was
dismissed as untimely. See Vieyra v. State, Case No. A19A1327, dismissed Feb. 15,
2019. Vieyra again sought to appeal the denial of his request for an out-of-time
appeal, and we affirmed that ruling in an unpublished opinion. See Vieyra v. State,
Case No. A19A2020, decided Jan. 8, 2020.
According to Vieyra, because the rape charge against him was disposed by
order of nolle prosequi, the State was not permitted to impose a requirement that he
register as a sex offender. However, the statute requiring Vieyra to register as a sex
offender explicitly applies to persons convicted of “[a]ggravated assault with the
intent to rape in violation of Code Section 16-5-21[.]” OCGA § 42-1-12 (a) (10) (B.1)
(i), (e) (2). Consequently, Vieyra has not raised a colorable void-sentence claim, and
his appeal is hereby DISMISSED. See Frazier, 302 Ga. App. at 348-349.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/10/2021
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.