David L. Tolbert v. State
David L. Tolbert v. State
Opinion
Court of Appeals of the State of Georgia ATLANTA,__________________ June 12, 2013 The Court of Appeals hereby passes the following order: A13A1903. DAVID L. TOLBERT v. THE STATE.
David Tolbert was convicted of armed robbery and sentenced to life under the recidivist statute. Tolbert’s conviction was affirmed on appeal. See Tolbert v. State, 313 Ga. App. 46 (1) (720 SE2d 244) (2011). Tolbert filed a motion to vacate the judgment of conviction, which the trial court denied. Tolbert filed a direct appeal from that order. We lack jurisdiction. “[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). Any appeal from an order denying or dismissing such a motion must be dismissed. See Harper, supra; Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010).
While a direct appeal may lie from an order denying or dismissing a motion to correct a void sentence, this is true only if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper, supra at n.1; Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only when the trial court imposes punishment that the law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Because Tolbert has not raised a colorable claim that his sentence is void, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia 06/12/2013 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.
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