Full Opinion

Court of Appeals of the State of Georgia ATLANTA,____________________ November 12, 2026 The Court of Appeals hereby passes the following order: A27A0633. CLIFFORD WHATLEY v. THE STATE. In 2019, Clifford Whatley pleaded guilty to aggravated battery, two counts of aggravated assault, terroristic threats, and theft by taking and was sentenced to 70 years, with the first 40 years to be served in confinement and the remainder on probation. In 2025, Whatley filed a motion to vacate/correct a void sentence, alleging that the trial court erred when it failed to merge his aggravated assault and aggravated battery convictions. The trial court denied Whatley’s motion on December 15, 2025, and Whatley filed a notice of appeal therefrom on February 3, 2026. We lack jurisdiction for two reasons. First, a notice of appeal must be filed within 30 days of entry of the judgment or trial court order sought to be appealed. OCGA § 5-6-38(a). The proper and timely filing of a notice of appeal is an absolute requirement to confer appellate jurisdiction on this Court. See Kelly v. State, 311 Ga. 827, 828 (860 SE2d 740) (2021). Whatley’s notice of appeal was untimely filed 50 days after entry of the order he seeks to appeal, thereby depriving us of jurisdiction over this appeal. See id. Second, even if Whatley’s appeal had been timely filed, this Court would still lack jurisdiction. “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). And a direct appeal may lie from an order denying a motion to vacate or correct a void sentence only if the defendant raises a colorable claim that the sentence is, in fact, void. See Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). Whatley alleges that his sentence is void because the trial court should have merged his convictions for aggravated assault and aggravated battery. See, e.g., Bonner v. State, 308 Ga. App. 827, 830(2) (709 SE2d 358) (2011) (“The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts.”) (quotation marks omitted). Whatley’s merger claim is a challenge to his convictions, and not his sentences, and thus does not state a valid void-sentence claim. See Williams v. State, 287 Ga. 192, 193–94 (695 SE2d 244) (2010). To the extent that Whatley’s motion seeks to vacate his convictions, “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), and any appeal from an order denying or dismissing such a motion must be dismissed. See id. at 218(2). See also Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). For these reasons, we lack jurisdiction to consider this appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/12/2026 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.