Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 November 13, 2017

The Court of Appeals hereby passes the following order:

A18A0474. DANIEL JORDAN v. THE STATE.

      In 2010, a jury found Daniel Jordan guilty of rape and two counts each of
aggravated child molestation and child molestation, and the trial court imposed a total
sentence of 50 years’ imprisonment, to be followed by life on probation. We affirmed
Jordan’s judgment of conviction in 2012, and our remittitur issued later that year.
Jordan v. State, 317 Ga. App. 160 (730 SE2d 723) (2012).
      In 2017, Jordan filed a motion to vacate a void sentence, which the trial court
denied. Jordan then filed the instant notice of appeal, seeking appellate review of his
2010 conviction and the 2017 denial of his motion to vacate. We lack jurisdiction.
      First, Jordan’s attempted second appeal of his 2010 conviction is both untimely
and barred by res judicata. See OCGA § 5-6-38 (a) (a notice of appeal must be filed
within 30 days of entry of the order sought to be appealed); Rowland v. State, 264 Ga.
872, 872 (1) (452 SE2d 756) (1995) (the proper and timely filing of a notice of appeal
is an absolute requirement to confer jurisdiction on this Court); Ward v. State, 299
Ga. App. 63, 64 (682 SE2d 128) (2009) (“Ordinarily, our determination on direct
appeal of a criminal judgment is res judicata, and a criminal defendant is not entitled
to another bite at the apple by way of a second appeal.”) (punctuation omitted).
      Second, a direct appeal lies from an order denying a motion to vacate or correct
a void sentence only if the defendant raises a colorable claim that the sentence is, in
fact, void.1 See Harper v. State, 286 Ga. 216, 217, n. 1 (686 SE2d 786) (2009); Burg


      1
         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,
v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). “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). 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 to vacate, Jordan claims that his sentences should be modified because
the trial court failed to exercise its discretion to impose lower sentences. He does not,
however, raise a colorable claim that his sentences fall outside the statutory ranges
of punishment.2 See von Thomas, 293 Ga. at 572 (2); Jones, 278 Ga. at 670. Absent
a colorable void-sentence claim, we lack jurisdiction over this appeal.
      For each of the above reasons, this appeal is hereby DISMISSED for lack of
jurisdiction.

                                         Court of Appeals of the State of Georgia
                                                Clerk’s Office, Atlanta,____________________
                                                                          11/13/2017
                                                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.




whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period expires, a trial court may modify only a void
sentence. Id.
      2
         Jordan’s passing, conclusory assertion that he was “not eligible” for a life
sentence for his rape conviction is belied by the plain language of the rape statute.
See OCGA § 16-6-1 (b) (rape is punishable by, inter alia, “a term of imprisonment for
not less than 25 years and not exceeding life imprisonment, followed by probation for
life”).
