Jerry Martin v. State, A17D0499

Jerry Martin was convicted by a jury of aggravated sexual battery, aggravated child molestation, enticing a child for indecent purposes, and child molestation; several counts were merged for sentencing.
Martin’s conviction was previously affirmed on direct appeal in 2007.
Martin later filed pro se motions in the trial court: one to set aside/vacate his judgment of conviction and another to recuse the trial judge; both motions were denied on May 17, 2017.
Martin filed an application for discretionary appeal to the Court of Appeals challenging those denials.
The Court of Appeals considered whether it had jurisdiction to review the order denying a motion to set aside the conviction and whether the recusal denial was appealable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an appeal lies from denial of a motion to set aside/vacate a criminal conviction as void	Martin sought to set aside his conviction as void	State asserted such motions are not an established procedure and are not appealable absent a colorable void-sentence claim	Dismissed for lack of jurisdiction: motion to set aside conviction is not an established remedy and Martin raised no colorable void-sentence claim
Whether a sentence is void when within statutory range	Martin did not claim his sentence exceeded statutory range	State argued sentences within statutory range are not void and grounds to vacate are limited	Court held that sentences within statutory range are not void; Martin raised no void-sentence claim
Whether an appeal may lie from denial of a motion to recuse the trial judge	Martin sought review of the trial judge’s denial to recuse	State argued the issue is moot because conviction is final and there is no pending relief that recusal could affect	Court held the recusal denial was moot and not subject to discretionary appeal
Whether the Court of Appeals had jurisdiction to hear Martin’s discretionary application	Martin filed a discretionary application after trial-court denials	State maintained the discretionary application should be dismissed for lack of jurisdiction or mootness	Court dismissed the application for discretionary appeal

Roberts v. State, 286 Ga. 532 (motion to set aside a criminal conviction is not an established procedure; dismissal of appeal appropriate)
Harper v. State, 286 Ga. 216 (direct appeal may lie from denial of motion to correct a void sentence if a colorable void/illegal sentence claim is raised)
von Thomas v. State, 293 Ga. 569 (motions to vacate a void sentence are generally limited to claims that sentence exceeds statutory authorization)
Jones v. State, 278 Ga. 669 (sentence within statutory range is not void)
Carlock v. Kmart Corp., 227 Ga. App. 356 (mootness: a ruling that would have no practical effect is moot)