Jackie Whorton v. State, A18A0015

Jackie Whorton was convicted in 2006 of aggravated child molestation and related offenses; total sentence 75 years. Appellate judgment of conviction was previously affirmed.
In August 2016 Whorton filed a motion to correct and/or vacate an allegedly illegal/void sentence; the trial court denied relief on September 26, 2016.
Whorton’s notice of appeal was dated October 3, 2016 but not filed in the trial court until June 14, 2017 (261 days after the denial order).
Whorton’s motion argued the trial court failed to exercise discretion to impose lower sentences or split sentences under OCGA § 17-10-6.2, failed to impose below mandatory minimums, failed to merge convictions (double jeopardy), and that sentences were cruel and unusual.
The Court of Appeals dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely and because Whorton failed to present a colorable void-sentence claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal	Whorton appealed the denial of his motion (filed by notice dated Oct. 3, 2016).	The notice of appeal was not filed within 30 days of the denial order (filed in trial court June 14, 2017).	Appeal dismissed for untimeliness; timely notice is jurisdictional.
Void-sentence claim — sentencing discretion / mandatory minima / cruel and unusual	Whorton contended the court failed to exercise discretion to impose less than statutory maxima/mandatory minima and that sentences were cruel and unusual.	State argued these claims do not allege a sentence outside the statutory range and thus are not void-sentence claims.	Held not colorable as void-sentence claims because sentences fall within statutory range.
Applicability of OCGA § 17-10-6.2 (split sentences)	Whorton argued split sentences were required under § 17-10-6.2(b).	State: statute was enacted after the offenses and therefore does not apply.	§ 17-10-6.2 did not apply to crimes committed 2002–2004; claim fails.
Merger / double jeopardy challenge	Whorton argued several convictions should merge, violating double jeopardy.	State: merger challenge attacks convictions, not the sentence; not a valid void-sentence claim.	Merger claim challenges convictions and cannot be raised as void-sentence motion; not colorable for appeal.

Rowland v. State, 264 Ga. 872 (timely filing of notice of appeal is jurisdictional)
Harper v. State, 286 Ga. 216 (appeal from denial of motion to vacate a void sentence requires a colorable void-sentence claim)
von Thomas v. State, 293 Ga. 569 (void-sentence motions limited to sentences exceeding statutory authorization)
Jones v. State, 278 Ga. 669 (sentence within statutory range is not void)
New v. State, 327 Ga. App. 87 (noncompliance with § 17-10-6.2 can render sentence void when statute applies)
Searcy v. State, 162 Ga. App. 695 (sentencing law of the time of the offense controls)
Williams v. State, 287 Ga. 192 (merger/double jeopardy challenges attack convictions and are not void-sentence claims)
Roberts v. State, 286 Ga. 532 (petition to vacate or modify a judgment of conviction is not proper criminal remedy)