Kennedy Smith v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 08, 2021
The Court of Appeals hereby passes the following order:
A21A0744. KENNEDY SMITH v. THE STATE.
In 2006, a jury convicted Kennedy Smith of burglary, kidnapping, rape, and
two counts of robbery. He was sentenced to serve a total of 90 years in confinement,
20 years each on the burglary, kidnapping, and rape counts, and 15 years each on the
robbery counts with all sentences to be served consecutively. Smith’s convictions
were affirmed on appeal. See Kennedy v. State, 287 Ga. App. 222 (651 SE2d 133)
(2007). In 2014, Smith filed a motion to set aside a void sentence, which was denied
by the trial court. Smith appealed, but his appeal was dismissed as untimely. See Case
No. A15A0015 (decided Sept. 18, 2014). In 2020, Smith filed a motion to correct a
void sentence, which the trial court denied. Smith then filed this direct appeal.
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, as here, 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. Thus, “[m]otions 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.” See von Thomas v.
State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013) 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.
Smith has not raised a colorable claim that his sentences are void. In his
motion, Smith does not claim his sentences exceed the statutory maximum, but
merely states that his sentences are void without explanation. In fact, Smith’s
sentences all fall within the statutory ranges of permissible punishments for the
crimes of which he was convicted. Because Smith has not raised a valid void-
sentence claim, he is not entitled to a direct appeal. Accordingly, this case is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
06/08/2021
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.