Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A19A1223. CALVIN J. SMITH v. THE STATE.

In 2017, a jury convicted Calvin J. Smith of possession of a firearm by a

convicted felon. Smith subsequently filed a motion to vacate a void sentence, arguing

that his acquittal on other charges barred his conviction for possessing a firearm. The

trial court denied the motion on January 11, 2018, and Smith filed his notice of appeal

on February 26, 2018. We lack jurisdiction.

To be timely, a notice of appeal must be filed within 30 days after entry of the

order on appeal. See OCGA § 5-6-38 (a). The proper and timely filing of a notice of

appeal is an absolute requirement to confer jurisdiction on this Court. See Couch v.

United PaperworkersIntl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Because

Smith’s notice of appeal was filed 46 days after entry of the trial court’s order, we

lack jurisdiction over this appeal.

1

Even if the notice of appeal were timely, this appeal would be subject to

dismissal. A direct appeal may lie from an order denying a motion to vacate a void

sentence, but only if the defendant raises a colorable claim that the sentence is, in

fact, void. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg

v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if

it imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610,

1 According to the certificate of service, Smith mailed his notice of appeal on

February 5, 2018, but it was not entered by the trial court clerk until February 26,

2018. Although Smith would be given the benefit of a “mailbox rule” for a habeas

matter, the rule does not apply to this non-habeas motion. See Jackson v. State, 313

Ga. App. 483, 484 (722 SE2d 80) (2011).

February 01, 2019
611 (1) (409 SE2d 517) (1991). “Motions to 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 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, Smith does not allege that the five-year sentence exceeded the maximum

allowable sentence. Rather, he challenges the conviction itself. The Supreme Court

has made clear that 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 SE2d 150)

(2010).

For these reasons, we lack jurisdiction over this appeal, which is hereby

DISMISSED.

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.

02/01/2019