Xavier Geder v. State


Court of Appeals of the State of Georgia ATLANTA,____________________ July 15, 2021 The Court of Appeals hereby passes the following order: A21A0907. XAVIER GEDER v. THE STATE. In 2017, Xavier Geder plead guilty to criminal attempt to commit murder, two counts of aggravated assault, and possession of marijuana with intent to distribute, and he was sentenced to 30 years’ incarceration followed by 30 years’ probation. In 2020, Geder filed a motion to modify his sentence, claiming prosecutorial misconduct, due process violations, ineffective assistance of counsel, and that his plea was not voluntary or intelligently made. Additionally, Geder requested that the trial court modify his sentence to remove the requirement that he serve 30 years on probation. The trial court denied Geder’s motion, and he has filed this direct appeal. We lack jurisdiction. 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). Once this statutory period expires, a trial court may modify only a void sentence. Id. A sentence is void if the court imposes punishment that the law does not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). When a sentence falls within the statutory range of punishment, it is not void and is not subject to modification beyond the time provided in § 17-10-1 (f). See id. Moreover, a direct appeal does not lie from the denial of a motion to modify a sentence filed outside the statutory time period unless the motion raises a colorable claim that the sentence is, in fact, void. Frazier, 302 Ga. App. at 348. Geder’s claims do not call into question the validity of his sentence and therefore do not state a valid void-sentence claim. See von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013) (“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.”); Jones, 278 Ga. at 670. To the extent that Geder sought to call into question the validity of his underlying convictions, “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). For these reasons, we hereby DISMISS this appeal for lack of jurisdiction. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/15/2021 I certify that the above is a true extract from the minutes of the Court of …

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