Lamar Johnson v. State
A17D0491
| Ga. Ct. App. | Jul 4, 2017Background
- Lamar Johnson was convicted of armed robbery, motor vehicle hijacking, kidnapping, false imprisonment, and possession of a firearm during the commission of a crime; the firearm conviction was later reversed and other convictions affirmed on direct appeal.
- In 2016 Johnson filed a motion to vacate and modify sentence and a motion to vacate a void sentence; the trial court denied both on January 24, 2017.
- Johnson sought more time to appeal; the trial court (on May 2, 2017) purported to grant an extension under OCGA § 5-6-39 and gave him until June 1, 2017 to file a "notice of appeal."
- Johnson filed an application for discretionary review in this Court on June 1, 2017 — 128 days after the order denying his postconviction motions.
- The Court of Appeals determined the trial court lacked authority to extend the 30-day filing period for a discretionary appeal and dismissed the application for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could extend time to file a discretionary application for appeal | Johnson relied on the trial court’s May 2, 2017 order extending time under OCGA § 5-6-39 | State argued the trial court lacked authority; extension must be sought from the appellate court | Trial court lacked authority; extension must be requested from appellate court; dismissal for lack of jurisdiction |
| Whether the late filing could be excused given the trial court’s order | Johnson asserted the trial court’s grant entitled him to file late | State contended that OCGA § 5-6-35(d) is jurisdictional and cannot be excused by trial court action | Court held the 30-day deadline is jurisdictional and Johnson’s application was untimely |
| Whether a direct appeal lies from denial of motion to vacate a void sentence | Johnson sought appeal from order denying void-sentence motion | State noted direct appeal only allowed if sentence is colorably void | Court reiterated that direct appeal is available only for a colorable void-sentence claim |
| Whether the sentence was void so as to permit appeal | Johnson implicitly claimed his sentence might be void | State maintained no colorable claim of a sentence that the law does not allow | Court found no basis to excuse the untimely filing and dismissed for lack of jurisdiction (did not reach merits of voidness) |
Key Cases Cited
- Johnson v. State, 309 Ga. App. 655 (direct appeal decision reversing firearm conviction)
- Boyle v. State, 190 Ga. App. 734 (jurisdictional nature of OCGA § 5-6-35 requirements)
- Gable v. State, 290 Ga. 81 (trial court may not grant extension to file discretionary application)
- Harper v. State, 286 Ga. 216 (direct appeal permitted for colorable void-sentence claims)
- Burg v. State, 297 Ga. App. 118 (same)
- Crumbley v. State, 261 Ga. 610 (sentence is void only if it imposes punishment the law does not allow)