Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 June 21, 2018

The Court of Appeals hereby passes the following order:

A18A1614. TITO HERNANDEZ v. THE STATE.

      A jury found Tito Hernandez and two co-defendants guilty of kidnapping, and
this Court affirmed the convictions on appeal. See Deleon-Alvarez v. State, 324 Ga.
App. 694 (751 SE2d 497) (2013). In 2018, Hernandez filed a motion to vacate a void
conviction and sentence, arguing that the indictment was defective and that his case
should have been severed from that of his codefendants. The trial court denied the
motion, and Hernandez filed this direct appeal. We lack jurisdiction.
      A challenge to validity of indictment is a challenge to the conviction. See
Jones v. State, 290 Ga. App. 490, 494 (2) (659 SE2d 875) (2008). “[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). The Supreme
Court has explained that such a motion “is not one of the established procedures for
challenging the validity of a judgment in a criminal case.” Roberts v. State, 286 Ga.
532, 532 (690 SE2d 150) (2010). Thus, any appeal from an order denying or
dismissing such a motion must be dismissed. Id.; Harper, 286 Ga. at 218 (2).
However, an appeal may lie from an order denying or dismissing a motion to correct
a void sentence if the defendant raises a colorable claim that the sentence is, in fact,
void or illegal. Harper, 286 Ga. at 217 (1), n. 1. Hernandez, however, has not done
so.
      “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). Hernandez does not contend that his sentence exceeded
the statutory range of punishment; instead, he challenges the validity of his
convictions and the procedure employed at trial. Because Hernandez has not raised
a colorable void-sentence claim, this appeal is hereby DISMISSED for lack of
jurisdiction.

                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        06/21/2018
                                              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.
