Opinion
A23A1430
08-04-2023
DERRICK A. JOHNSON v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2015, Derrick Johnson pleaded guilty to six counts of burglary in the first degree. The trial court sentenced Johnson to serve 25 years each for counts one through five, to run concurrently and 10 years to serve for count six, to run consecutively. In March 2023, Johnson filed a "motion to vacate void judgment and illegal sentence," arguing that because he had three prior felony convictions for burglary, his sentence on count six violated OCGA § 16-7-1 (b) and (d) because it was less than 25 years. The trial court denied the motion. Johnson appeals. We lack jurisdiction.
Johnson has filed at least three other appeals in this Court. See Cases No. A19A1436 (dismissed Mar. 26, 2019); A20A1027 (dismissed Jun. 12, 2020); A23A0867 (dismissed Feb. 7, 2023).
"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 S.E.2d 446) (2013). A direct appeal does not lie from the denial of a motion to vacate a void sentence filed outside the statutory time period unless the motion raises a colorable claim that the sentence is, in fact, void. Frazier v. State, 302 Ga.App. 346, 348 (691 S.E.2d 247) (2010). Under OCGA § 16-7-1 (b), "[u]pon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than five nor more than 25 years." And under OCGA § 167-1 (d), "[u]pon a fourth and all subsequent convictions for a crime of burglary in any degree, adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld."
Here, Johnson's sentence of 10 years to serve on count six was within the statutory range of punishment, and it is not void. See Brown v. State, 295 Ga.App. 66, 67-68 (670 S.E.2d 867) (2008). Johnson therefore is not entitled to a direct appeal in this case. See Frazier, 302 Ga.App. at 348; Brown, 295 Ga.App. at 67-68. Consequently, this appeal is hereby DISMISSED.