Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 April 20, 2017

The Court of Appeals hereby passes the following order:

A17A1137. TERRY PAUL BURTON v. THE STATE.

      In 2009, Terry Burton pled guilty to kidnapping, and the trial court imposed a
twenty-year sentence, with the first ten years to be served in prison, and the remainder
to be served on probation. In 2016, Burton filed a “Petition for Mandamus,” in which
he raised various challenges to his conviction and sentence. The trial court denied
Burton’s petition, and he filed this direct appeal. We lack jurisdiction.
      A trial court order refusing to grant mandamus relief ordinarily is directly
appealable. See OCGA § 5-6-34 (a) (7). Here, however, while styled as a petition
for a writ of mandamus, Burton’s petition is, in substance, a motion to vacate a void
conviction and/or sentence. See Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 266
(491 SE2d 471) (1997) (“[P]leadings, motions and orders are to be construed
according to their substance and function and not merely as to their
nomenclature. . . .”).
      To the extent that Burton seeks to challenge his conviction, “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), and any appeal
from an order denying or dismissing such a motion must be dismissed, see id. at 218
(2); see also Roberts v. State, 286 Ga. 532, 532 (690 SE2d 150) (2010). To the extent
that Burton seeks to challenge the validity of his sentence, a direct appeal may lie
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. See Harper, 286
Ga. at 217 n.1; Burg 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). Here, Burton has not raised a colorable claim that his
sentence is void, as his challenges to his sentence are premised entirely on his
challenges to the validity of his conviction.
      Consequently, we lack jurisdiction to consider this appeal, which is hereby
DISMISSED.

                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        04/20/2017
                                              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.
