Daniel Jordan v. State ( 2021 )


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  • Court of Appeals
    of the State of Georgia
    ATLANTA,____________________
    June 04, 2021
    The Court of Appeals hereby passes the following order:
    A21A0170. DANIEL JORDAN v. THE STATE.
    Daniel Jordan was convicted of one count of rape, two counts of aggravated
    child molestation, and two counts of child molestation. The trial court sentenced him
    to thirty years’ imprisonment and life on probation for rape; concurrent sentences of
    thirty years’ imprisonment and life on probation for each count of aggravated child
    molestation; and consecutive terms of ten years’ imprisonment for each count of child
    molestation. This Court affirmed Jordan’s convictions in 2012. See Jordan v. State, 
    317 Ga. App. 160
     (730 SE2d 723) (2012). Subsequently, Jordan filed motions challenging his
    sentence as void. The trial court dismissed the motions. On appeal, we concluded that
    Jordan’s sentences for child molestation were void under former OCGA § 17-10-6.2 (b) because
    the trial court sentenced him to ten years’ imprisonment rather than split sentences with
    at least one year of probation. See Case No. A18A1830 (November 27, 2018).
    Accordingly, we vacated Jordan’s sentences on the child-molestation counts and
    remanded the case for resentencing consistent with the mandates of that statutory
    section.
    The trial court entered an amended sentence in January 2019, followed by a
    second amended sentence in February 2019. Jordan’s second amended sentence is
    identical to his original sentence except as to the child-molestation counts. On those
    counts, the trial court sentenced Jordan to ten years with nine years to serve followed
    by one year probation.
    More than a year later, in March 2020, Jordan filed a pro se “Motion to
    Challenge Void Sentence/Motion to Modify/Reduce Sentence,” arguing that his
    second amended sentence is void because the trial court did not properly implement
    this Court’s direction on remand and because he was not present in court for the
    resentencing. The trial court denied the motion, and Jordan filed this appeal. We,
    however, 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, as here, this statutory period expires, a trial court may only modify a void
    sentence. 
    Id.
     And a direct appeal may lie from an order denying or dismissing a
    motion to vacate a void sentence, but only if the defendant raises a colorable claim
    that the sentence is, in fact, void. See Harper v. State, 
    286 Ga. 216
    , 217 n.1 (686
    SE2d 786) (2009); Burg v. State, 
    297 Ga. App. 118
    , 119 (676 SE2d 465) (2009). A
    sentence is void only if it imposes punishment that the law does not allow. Crumbley
    v. State, 
    261 Ga. 610
    , 611 (1) (409 SE2d 517) (1991). “Motions to vacate 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 provides.” von Thomasv. State, 
    293 Ga. 569
    ,
    572 (2) (748 SE2d 446) (2013). "Rulings on pleadings asserting erroneous procedure
    or unfair treatment are not subject to direct appeal because they are not rulings on
    whether the sentence is void. Rather, a petition for writ of habeas corpus is the means
    for seeking sentence review for such allegations." Jones v. State, 
    278 Ga. 669
    , 671
    (
    604 S.E.2d 483
    ) (2004).
    Here, Jordan does not contend that his sentence is longer than the law allows.
    Instead, he contends that it is void because the trial court did not follow this Court’s
    direction and because he was not present at the resentencing hearing. These are not
    valid void-sentence claims, and Jordan is not entitled to appeal the trial court’s order
    denying his motion. See Jones, 
    278 Ga. at 671
    . Accordingly, this appeal is hereby
    DISMISSED.
    Court of Appeals of the State of Georgia
    Clerk’s Office, Atlanta,____________________
    06/04/2021
    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.
    

Document Info

Docket Number: A21A0170

Filed Date: 6/15/2021

Precedential Status: Precedential

Modified Date: 6/15/2021