Javarious Davis v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 06, 2019
The Court of Appeals hereby passes the following order:
A19A1171. JAVARIOUS DAVIS v. THE STATE.
In 2009, a jury convicted Javarious Davis of possession of a firearm during the
commission of a felony and five counts each of armed robbery and aggravated
assault. The trial court sentenced Davis to fifteen years to serve in confinement for
the armed robberies and five years suspended for the firearm count. His convictions
were affirmed on appeal. Davis v. State, 331 Ga. App. 585 (771 SE2d 232) (2015).
In 2017, Davis filed a “Motion to Modify Void Sentence Based on Court’s
Misapprehension of Fact,” asserting that the trial court’s oral sentence of fifteens
years to serve with eligibility for parole after ten years is an illegal and void sentence
because a person convicted of armed robbery is not eligible for parole pursuant to
OCGA § 17-10-6.1 (c) (4). The trial court denied the motion and Davis filed this
direct appeal.
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 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 denial of 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.
Pretermitting whether the trial court made an incorrect statement at the
sentencing hearing, “[a]n oral declaration as to what the sentence shall be is not the
sentence of the court; the sentence signed by the judge is.” Young v. State, 328 Ga.
App. 91, 92 (761 SE2d 504) (2014) (punctuation omitted); see also Bell v. State, 294
Ga. 5, 8-9 (2) (749 SE2d 672) (2013) (“It is the sentence signed by the judge, not his
oral declaration, that is the sentence of the court.”). Here, the written sentence of
fifteen years in confinement for the armed robberies is within the statutory range of
punishment. OCGA § 16-8-41 (b). Because Davis’s sentence is not void, the trial
court’s denial of his motion is not subject to direct appeal. Accordingly, this appeal
is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/06/2019
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.