MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
2007, Christopher Bihlear was convicted of armed robbery and
sentenced as a recidivist to life in prison without parole.
He directly appealed from his conviction and we affirmed that
judgment in Bihlear v. State, 295 Ga.App. 486 (672
S.E.2d 459) (2009). In 2015, he filed a pro se "Motion
to Correct Void Sentence, " which the trial court
denied. Bihlear now appeals from that ruling, and the state
moves to dismiss the appeal. We deny the state's motion
to dismiss, because Bihlear has stated a colorable claim for
void sentence over which we have appellate jurisdiction and
the state has not supported its assertion that a non-lawyer
other than Bihlear drafted the motion and filed the notice of
appeal. However, we affirm the judgment because the trial
court correctly determined that Bihlear's sentence was
Motion to dismiss appeal.
state moves to dismiss Bihlear's appeal on two grounds:
because we lack jurisdiction over the appeal, and because a
non-lawyer other than Bihlear drafted the motion and filed
the appeal. Because neither argument has merit, we deny the
state's motion to dismiss.
state argues that we lack jurisdiction over this appeal from
the trial court's ruling on Bihlear's "Motion to
Correct Void Sentence" because Bihlear did not raise a
colorable claim of voidness in that motion. While the denial
of a motion to correct a void sentence is directly
appealable, "in determining whether a purported motion
to correct . . . a void sentence is in fact such a motion, we
look to the substance of the motion rather than its
nomenclature." Coleman v. State, 305 Ga.App.
680 (700 S.E.2d 668) (2010) (citations omitted). If an
appellant's claims of error do not present a colorable
claim of voidness, he is not entitled to a direct appeal from
the trial court's denial of his motion to correct a void
sentence, even if he characterizes his sentence as
"void." Id. at 681; Burg v.
State, 297 Ga.App. 118, 119 (676 S.E.2d 465) (2009).
"A sentence is void if the court imposes punishment that
the law does not allow." Crumbley v. State, 261
Ga. 610, 611 (1) (409 S.E.2d 517) (1991) (citation omitted).
"Motions to vacate [or correct] 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
applies." von Thomas v. State, 293 Ga. 569, 572
(2) (748 S.E.2d 446) (2013) (citations omitted).
motion, Bihlear claimed that the law did not allow his
recidivist sentence of life without parole because the state
and the trial court had not satisfied certain statutory
prerequisites for such a sentence. While Bihlear's motion
is without merit for the reasons described below, it
nevertheless presented a colorable claim for a void sentence.
See Dempsey v. State, 279 Ga. 546, 549 (4) (615
S.E.2d 522) (2005) (sentence for life without parole is void
if not in conformity with statute governing recidivist
sentencing); State v. Willis, 218 Ga.App. 402, 404
(5) (461 S.E.2d 576) (1995) (same); see also Kimbrough v.
State, 300 Ga. 516, 518-520 (3) (796 S.E.2d 694) (2017)
(considering but rejecting on the merits, rather than
dismissing, appellant's claim that recidivist sentence of
life without parole for murder conviction was void because
state did not meet statutory requirement of giving notice of
intent to seek death penalty). Consequently, Bihlear was
entitled to a direct appeal from the trial court's order
denying his motion.
Involvement of non-lawyer.
state argues that we should dismiss Bihlear's appeal
because a non-lawyer was involved in drafting his motion and
filing his notice of appeal. Assuming without deciding that
this would be a ground for dismissal, the appellate record
does not support the state's assertion that any such
involvement occurred. Bihlear signed both pleadings as a pro
se litigant, and the appellate record has not been developed
to show that any other person was acting on Bihlear's
behalf. We therefore decline to dismiss the appeal on this
Motion to correct void sentence.
argues that the law did not authorize his sentence of life
without parole for armed robbery, and thus his sentence was
void and the trial court erred in denying his motion to
correct void sentence. We disagree.
trial court imposed Bihlear's sentence for armed robbery
pursuant to the recidivist sentencing provisions of OCGA
§ 17-10-7 (a) and (c). The Code section setting forth
the offense of armed robbery, OCGA § 16-8-41, authorizes
life imprisonment as a punishment. See Lester v.
State, 309 Ga.App. 1, 5 (2) (710 S.E.2d 161) (2011). And
OCGA § 16-8-41 permits a recidivist sentence requiring a
person to serve a sentence ...