Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A19A0721. GERARDO GUERRERO-RICO v. THE STATE.

In 2014,Gerardo Guerrero-Rico pled guilty to trafficking in methamphetamine,

and the trial court imposed a sentence of 15 years in prison, to be followed by 5 years

on probation. In 2016, we issued a decision affirming the trial court’srulings denying

several post-conviction motions filed by Guerrero-Rico, and our remittitur was

received by the trial court in June 2016. See Guerrero-Rico v. State, No. A16A1361

(June 9, 2016).

In July 2018, Guerrero-Rico filed a motion to correct an illegally imposed

sentence, which the trial court denied. Guerrero-Rico then filed this direct appeal. 

We lack jurisdiction.

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, 348 (691 SE2d 247) (2010). 

Once, as here, this statutory period expires, a trial court may modify only a void

sentence. Id. A sentence is void if the court imposes punishment that the law does

not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). When a sentence

falls within the statutory range of punishment, it is not void and is not subject to

modification beyond the time provided in § 17-10-1 (f). See id. Moreover, a direct

appeal does not lie from the denial of a motion to modify a sentence filed outside the

statutory time period unless the motion raises a colorable claim that the sentence is,

in fact, void. Frazier, 302 Ga. App. at 348.

In his motion to correct an illegally imposed sentence, Guerrero-Rico argued

that his conviction is invalid due to improper venue. That contention, however,

December 31, 2018
which challengesthe validity of his underlying conviction, does not state a colorable

void-sentence claim. See von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446)

(2013) (“Motionsto vacate a void sentence generally are limited to claimsthat – even

assuming the existence and validity of the conviction for which the sentence was

imposed – the law does not authorize thatsentence, most typically because it exceeds

the mostsevere punishmentfor which the applicable penalstatute provides.”). To the

extent that Guerrero-Rico’s motion could be construed as a motion to vacate his

conviction, “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, this appeal is hereby DISMISSED for lack of jurisdiction. 

See Frazier, 302 Ga. App. at 348-349.

Court of Appeals of the State of Georgia

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.

12/31/2018