Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 October 13, 2017

The Court of Appeals hereby passes the following order:

A17A1802. ROGERS v. THE STATE.

      Appellant David Edmond Rogers 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 that sentences for 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 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) (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 unless the motion raises
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,____________________
                                                                         10/13/2017
                                               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.
