Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A16A0316. FREDERICK DWIGHT GREEN v. THE STATE.

In 2008, Frederick Dwight Green was convicted of armed robbery and

aggravated assault. The jury, however, found him not guilty of two counts of

possession of a firearm during the commission of a crime. We affirmed Green’s

convictions and sentence in an unpublished opinion. Green v. State, Case No.

A09A1273 (decided Sept. 8, 2009). Green subsequently filed a pro se motion,

arguing that because the jury found him not guilty of possession of a firearm, it

obviously found that no gun was involved. Green insists that, in light of this finding,

his convictions for aggravated assault and armed robbery are void. The trial court

denied Green’s motion, and he then filed this appeal.

“[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 id.; Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). A direct

appeal may lie from an order denying or dismissing 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, supra at n.1; 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, 611 (a) (409 SE2d 517) (1991). “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 wasimposed – 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,

December 09, 2015
293 Ga. 569, 572 (2) (748 SE2d 446) (2013).

Here, Green did not contend that his sentence was outside the statutory

maximumfor his offenses. Instead, he argued that his convictions are invalid because

they are based on inconsistent verdicts. This is not a colorable void-sentence

argument. See id.

Moreover, the Supreme Court recently overruled its prior precedent barring

mutually exclusive verdicts. See State v. Springer, 297 Ga. 376 (2) (774 SE2d 106)

(2015). See also Williams v. State, __ Ga. __ (Case No. S15A0939, decided Nov. 2,

2015) (applying Springer rule in a case where the conviction was entered in 2008);

Driskell v. State, __ Ga. App. __ (Case No. A15A1443, decided Sept. 23, 2015) (With

Springer, “the inconsistent verdict rule has been abolished in Georgia.”).

Because Green did not raise a colorable void-sentence argument, we lack

jurisdiction to review the trial court’s denial of his motion. See Roberts, supra. 

Accordingly, this appeal 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.

12/09/2015