Walter Williams was convicted in January 1997 of malice murder and armed robbery and sentenced to consecutive life sentences. This Court affirmed his convictions in Williams v. State , 242 Ga. 757 251 SE2d 254 1978. In March 2009 Williams filed a motion to correct illegal sentence, arguing that the crimes of murder and armed robbery merged as a matter of fact, and therefore, he could not be convicted and sentenced on both charges. The trial court denied the motion and Williams filed the instant direct appeal. For the reasons that follow, we dismiss Williams’ appeal. “It is incumbent upon this Court to inquire into its own jurisdiction. Cit.” Nix v. Watts , 284 Ga. 100 664 SE2d 194 2008. Pursuant to Harper v. State , 286 Ga. 216 686 SE2d 786 2009, “a petition to vacate or modify a judgment of conviction is not an appropriate remedy in a criminal case.” Id. at 217 1. Williams asserts in his motion to correct illegal sentence that he should not have been convicted and sentenced on the charge of armed robbery because that charge merged as a matter of fact with his malice murder conviction. See OCGA § 16-1-7 a. The jurisdictional question in this case is whether a claim that a conviction merged under OCGA § 16-1-7 a is a claim challenging the conviction or the resulting sentence as void. If the former, this Court is without jurisdiction under Harper . If the latter, this Court would have jurisdiction because the denial of a petition to correct a sentence on the ground that the original sentence was void is appealable as a matter of right. Williams v. State , 271 Ga. 686 1 523 SE2d 857 1999.
OCGA § 16-1-7 a provides, in pertinent part: when the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if . . . one crime is included in the other. OCGA § 16-1-7 a thus renders illegal a conviction for a crime that should have merged and a claim that a charge should have merged under OCGA § 16-1-7 is a specific attack on the conviction. Although the determination that the conviction is void requires that the sentence also be set aside, as would be the case when a conviction is declared void for any reason, this fact does not alter the fundamental nature of the challenge to the conviction itself. In contrast, a challenge to a void sentence presupposes that the trial court was authorized to sentence the defendant but the sentence imposed was not allowed by law. See, e.g., Rooney v. State , __Ga.__ Case No. S09A1604, decided March 1, 2010 attack on sentence as unlawfully consecutive; Worley v. State , 265 Ga. 251 1 454 SE2d 461 1995 claiming sentencing statute required determinate term between 5 and 20 years; Wade v. State , 231 Ga. 131, 134-135 200 SE2d 271 1973 holding sentences invalid because they did not follow the jury’s verdict and sentence; Thompson v. State , 294 Ga. App. 768 1 670 SE2d 226 2008 challenge of enhanced punishment under recidivist statute.
