David Kirkland v. State
A18A0094
| Ga. Ct. App. | Aug 22, 2017Background
- David Kirkland was convicted of armed robbery and sentenced to life without parole; conviction previously affirmed on appeal.
- In 2017 Kirkland filed a “Motion to vacate void judgment,” claiming his life-without-parole sentence was illegal.
- He argued the trial court should have sought the death penalty and filed notice under OCGA § 17-10-16(a) before imposing life without parole.
- The trial court denied the motion, reasoning Kirkland was sentenced under Georgia’s recidivist statute, OCGA § 17-10-7(c), because he had at least three prior felonies, which authorizes life without parole.
- Kirkland appealed the denial, but filed his notice of appeal 34 days after entry of the order (outside the 30-day deadline).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentence is void because trial court did not pursue death-penalty notice under OCGA § 17-10-16(a) | Kirkland: life-without-parole is void absent death-penalty procedures | State: sentence imposed under recidivist statute § 17-10-7(c), not § 17-10-16(a) | Court: Claim fails — sentence authorized by § 17-10-7(c); not void |
| Whether order denying motion to vacate void judgment is appealable here | Kirkland: denial reviewable; he raised void-sentence claim | State: no colorable void-sentence claim; appeal not proper | Court: appeal requires a colorable void-sentence claim; none shown |
| Whether appeal is timely | Kirkland: appealed after trial-court order | State: notice of appeal was filed after 30-day deadline | Court: appeal untimely (filed 34 days after order); court lacks jurisdiction |
| Whether the motion’s substance controls over its label | Kirkland: styled motion to vacate void judgment | State: substance governs, so treated as void-sentence motion | Court: Substance controls; treated as motion to vacate void sentence |
Key Cases Cited
- Rubiani v. State, 279 Ga. 299 (2005) (substance of a motion controls its effect)
- Harper v. State, 286 Ga. 216 (2009) (direct appeal from denial of void-sentence motion requires colorable void claim)
- von Thomas v. State, 293 Ga. 569 (2013) (void-sentence motions are limited to sentences unauthorized by law)
- Burg v. State, 297 Ga. App. 118 (2009) (appealability of orders denying void-sentence relief requires colorable claim)
- Rowland v. State, 264 Ga. 872 (1994) (timely filing of notice of appeal is jurisdictional)