Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A17A1802. ROGERS v. THE STATE.

Appellant David EdmondRogers pled guilty to first-degree burglary in Catoosa

County, Georgia on June 29, 2010 and received a sentence of 20 years with the first

10 years in confinement. Rogers also pled guilty to charges against him in Walker

County, Georgia in May of 2010, and the Catoosa County sentence runs consecutive

to these Walker County sentences. On August 1, 2016, Rogers filed a “Motion for

Clarification of Sentence/Specific Performance of Agreement” in Catoosa County

Superior Court, claiming that the plea agreement provided thatsentencesfor all of his

cases in Walker County and Catoosa County would run concurrently. The trial court

denied Rogers’s motion, and Rogers petitioned for discretionary review. This Court

denied Rogers’s petition on September 29, 2016 in Case No. A17D0061.

On November 18, 2016 Rogers filed a “Motion to Vacate/Correct Void

Sentence” on the same grounds as his prior motion. The trial court denied this motion

on April 11, 2017, and Rogers filed the instant direct appeal. We 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 thatsentence, 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) (citations omitted).

Thus, when a sentence is within the statutory range of punishment, it is not void.

Williams v. State, 331 Ga. App. 46, 48 (1) (769 SE2d 760) (2015). A direct appeal

does not lie from the denial of a motion to modify a sentence unlessthe motion raises

October 13, 2017
a colorable claim that the sentence is, in fact, void. Frazier v. State, 302 Ga. App.

346, 348 (691 SE2d 247) (2010).

Here, Rogers does not contend that his Catoosa County burglary sentence of

20 years with 10 to serve is outside the statutory range of punishment and, indeed, the

sentence is within the statutory range. See OCGA § 16-7-1 (b). We will look to the

substance of Rogers’s motion rather than its mere nomenclature and the true nature

of Rogers’s appeal is another attempt to withdraw his guilty plea or compel

enforcement of the alleged plea. See Miller v. State, 264 Ga. App. 801, 803 (b) (592

SE2d 450) (2003). 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). This motion was filed in the trial court over 6 years after Rogers’s guilty plea

though, and the trial court had already lost jurisdiction to allow Rogers to withdraw

his plea or to modify his sentence. Bonner v. State, 268 Ga. App. 170, 171 (1) (601

SE2d 478) (2004); OCGA § 17-10-1 (f). Accordingly, Rogers’s appeal is

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.

10/13/2017