Court of Appeals
of the State of Georgia
March 10, 2021
The Court of Appeals hereby passes the following order:
A21A1093. JASON TODD SMITH v. THE STATE.
In 1998, Jason Todd Smith pled guilty to statutory rape, and he was sentenced
to five years probation as a first offender. In 2020, Smith filed a motion to vacate a
void sentence. The trial court dismissed the motion, and Smith filed this appeal. We
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State,
302 Ga. App. 346
, 348 (691 SE2d 247) (2010).
Once this statutory period expires, a trial court may modify only a void sentence.
A sentence is
void if the court imposes punishment that the law does not allow. Jones
278 Ga. 669
, 670 (604 SE2d 483) (2004). When a sentence falls within the
statutory range of punishment, it is not void and is not subject to modification beyond
the time provided in § 17-10-1 (f). See
id. Moreover, a direct
appeal does not lie
from the trial court’s ruling on a motion to modify a sentence filed outside the
statutory time period unless the motion raises a colorable claim that the sentence is,
in fact, void.
Frazier, 302 Ga. App. at 348
In his motion to vacate his sentence, Smith argued that the trial court’s failure
to sentence him to a split sentence rendered the sentence void and that he was thus
entitled to withdraw his guilty plea. Although the legislature amended OCGA §
17-10-6.2 (b) in 2017 to require the imposition of a split sentence for certain sexual
offenses, there was no such requirement in effect at the time Smith was sentenced.
The trial court was thus not required to impose a split sentence. See Martinez-Chavez
352 Ga. App. 142
, 143 (1) (834 SE2d 139) (2019) (court is required to
sentence a defendant pursuant to the statute in effect at the time the crime was
committed). Accordingly, Smith has not raised a colorable void sentence claim, and
this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.