Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A18A1151. SAMORIAL L. HURST v. THE STATE.

In 1999, a jury convicted Samorial Hurst of two counts of armed robbery. He

was sentenced to life without parole as a recidivist under OCGA § 17-10-7 because

he was convicted of three prior felonies. We affirmed his convictions on appeal. See

Hurst v. State, 260 Ga. App. 708 (580 SE2d 666) (2003). In 2014, Hurst filed a

“Motion to Correct Void Sentence” alleging he was improperly sentenced pursuant

to OCGA § 17-10-7, which the trial court denied. We dismissed his appeal as

untimely. See Hurst v. State, A17A0135 (Sept. 8, 2016). In 2017, Hurst filed a

“Motion to Vacate Void Sentence” again alleging that he was improperly sentenced

as a recidivist. The trial court denied the motion on November 7, 2017, and he filed

this direct appeal on December 28, 2017. We, however, lack jurisdiction for three

reasons.

First, this appeal is untimely. A notice of appeal must be filed within 30 days

of entry of the trial court order sought to be appealed. 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. Rowland v. State, 264 Ga. 872, 872 (1) (452 SE2d 756) (1995). Hurst’s

notice of appeal, filed 51 days after entry of the order he seeks to appeal, is untimely.

Second, even if his appeal wastimely, Hurst hasfailed to raise a colorable void

sentence claim. Under OCGA § 17-10-1 (f), a court maymodify a sentence during the

year after its imposition or within 120 days after remittitur following a direct appeal,

whichever is later. See Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247)

(2010). Once this statutory period expires, a direct appeal may lie from an order

denying or dismissing a motion to correct a void sentence only if the defendant raises

March 07, 2018
a colorable claim that the sentence is, in fact, void or illegal. See Harper v. State, 286

Ga. 216, 217 (1) n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119

(676 SE2d 465) (2009). When a sentence is within the statutory range of punishment,

it is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).

In his motion, Hurst argued that two of his prior convictions were consolidated

into one conviction under OCGA § 17-10-7 (d) because he was sentenced to

concurrent sentences on the same day in the same order. However, the record shows

that Hurst was indicted separately for offenses that occurred on different dates.

Although two of his sentences were made concurrent, they were made by separate

order. When “a defendant is charged for separate crimes, arising out of separate

incidents, and is sentenced for each crime in a separate order, those offenses are not

considered ‘consolidated’ under OCGA § 17-10-7 (d).” Becoats v. State, 318 Ga.

App. 262, 264 (2) (733 SE2d 795) (2012) (citation omitted).

A trial court can sentence a recidivist defendant to life imprisonment without

the possibility of parole for armed robbery. OCGA § 17-10-7 (b). Thus, Hurst’s

sentence of life in prison is not more severe than the law allows, and it is not void.

See Brown v. State, 295 Ga. App. 66, 67-68 (670 SE2d 867) (2008).

Third, Hurst argues that the trial court lacked subject matter jurisdiction due

to problems with his indictments. This argument challenges the validity of his

convictions, not his sentence. See Jones v. State, 290 Ga. App. 490, 494 (2) (659

SE2d 875) (2008). However, “a petition to vacate or modify a judgment of conviction

is not an appropriate remedy in a criminal case,” Harper, 286 Ga. at 218 (1), and any

appeal from an order denying such a motion must be dismissed, see id. at 218 (2). 

For the reasons stated above, this appeal is hereby DISMISSED for lack of

jurisdiction.
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.

03/07/2018