Full Opinion (html_with_citations)

Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                  December 22, 2014

The Court of Appeals hereby passes the following order:

A15A0633. TONY E. FLOYD v. THE STATE.

      In 1987, Tony Floyd pled guilty to entering an automobile and was sentenced
to four years, to be served concurrent with another conviction in a separate case. On
August 28, 2014, Floyd filed a motion to vacate a void sentence, arguing that his
conviction was supposed to be classified as a misdemeanor and not a felony. The trial
court denied the motion, finding that the sentence length specifically shows the
court’s intention to treat the conviction as a felony. Floyd appeals from that order.
      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, 347-348
 (
691 SE2d 247
)
(2010); Burg v. State,
297 Ga. App. 118, 118
 (
676 SE2d 465
) (2009). Once this
statutory period expires, as it had here when Floyd filed his motion, a trial court may
modify a sentence only if it is void. Jones v. State,
278 Ga. 669, 670
 (
604 SE2d 483
)
(2004). A sentence is void only if it imposes punishment that the law does not allow.
Crumbley v. State,
261 Ga. 610, 611
 (a) (
409 SE2d 517
) (1991). “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).
      Here, Floyd’s sentence fell within the range allowed by law for a felony
conviction of entering an automobile. Floyd does not dispute this fact. Rather, he
contends he was wrongly convicted of a felony instead of a misdemeanor. This,
however, is a challenge to his conviction, not his sentence, and does not assert
grounds upon which a sentence can be declared void. See Brown v. State,
297 Ga. App. 738
 (
678 SE2d 172
) (2009). Because Floyd does not argue that his sentence
exceeds the statutory maximum for his offense, he has not raised a colorable void
sentence argument. Accordingly, Floyd’s appeal is hereby DISMISSED for lack of
jurisdiction.



                                     Court of Appeals of the State of Georgia
                                                                          12/22/2014
                                            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.