Jason Todd Smith v. State

J
Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                 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
lack jurisdiction.
      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.

Id.
A sentence is

void if the court imposes punishment that the law does not allow. Jones
v. State, 

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
v. State, 

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,____________________
                                                                      03/10/2021
                                            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.


                                                                                     , Clerk.

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