Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 February 01, 2019

The Court of Appeals hereby passes the following order:

A19A1223. CALVIN J. SMITH v. THE STATE.

      In 2017, a jury convicted Calvin J. Smith of possession of a firearm by a
convicted felon. Smith subsequently filed a motion to vacate a void sentence, arguing
that his acquittal on other charges barred his conviction for possessing a firearm. The
trial court denied the motion on January 11, 2018, and Smith filed his notice of appeal
on February 26, 2018. We lack jurisdiction.
      To be timely, a notice of appeal must be filed within 30 days after entry of the
order on appeal. See 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. See Couch v.
United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Because
Smith’s notice of appeal was filed 46 days after entry of the trial court’s order, we
lack jurisdiction over this appeal.1
      Even if the notice of appeal were timely, this appeal would be subject to
dismissal. A direct appeal may lie from an order denying 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 v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); 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,

      1
        According to the certificate of service, Smith mailed his notice of appeal on
February 5, 2018, but it was not entered by the trial court clerk until February 26,
2018. Although Smith would be given the benefit of a “mailbox rule” for a habeas
matter, the rule does not apply to this non-habeas motion. See Jackson v. State, 313
Ga. App. 483, 484 (722 SE2d 80) (2011).
611 (1) (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 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).
      Here, Smith does not allege that the five-year sentence exceeded the maximum
allowable sentence. Rather, he challenges the conviction itself. The Supreme Court
has made clear that a motion seeking to challenge an allegedly invalid or void
judgment of conviction “is not one of the established procedures for challenging the
validity of a judgment in a criminal case” and that an appeal from the denial of such
a motion is subject to dismissal. Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150)
(2010).
      For these reasons, we lack jurisdiction over this appeal, which is hereby
DISMISSED.

                                        Court of Appeals of the State of Georgia
                                               Clerk’s Office, Atlanta,____________________
                                                                         02/01/2019
                                               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.
