Opinion
A23D0201
01-20-2023
WILLIAM HOYT WHITTENBURG v. THE STATE
The Court of Appeals hereby passes the following order:
William Hoyt Whittenburg filed this application for discretionary appeal from the trial court's final order denying multiple post-conviction motions, including a motion to produce, motion to make prisoner available, and motion for hearing. As Whittenburg seeks to challenge his underlying conviction, the trial court determined that his sole remedy is habeas corpus proceedings. Whittenburg seeks leave to appeal this ruling, arguing that the trial court has the authority to set aside a void conviction and sentence.
Whittenburg filed a similar application involving a separate lower court case, which was dismissed. See Case No. A23D0091 (Oct. 25, 2022).
Whittenburg is mistaken. The Supreme Court has made clear a motion seeking to challenge an allegedly invalid or void judgment of conviction "is not one of the established procedures for challenging the validity of a judgment in a criminal case" and that an appeal from the denial of such a motion is subject to dismissal. Roberts v. State, 286 Ga. 532, 532 (690 S.E.2d 150) (2010). A defendant may still raise a void sentence argument. Harper v. State, 286 Ga. 216, 217 (1) n.1 (686 S.E.2d 786) (2009); Burg v. State, 297 Ga.App. 118, 119 (676 S.E.2d 465) (2009). "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).
Here, there is no suggestion that Whittenburg's sentence exceeded the permissible range of punishment. Rather, Whittenburg challenges the validity of his conviction. Because Whittenburg is not authorized to collaterally attack his conviction in this manner, his application for discretionary appeal is hereby DISMISSED. See Roberts, 286 Ga. at 532; Harper, 286 Ga. at 218 (2).