Andre Jones v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ September 18, 2018

The Court of Appeals hereby passes the following order:

A19A0209. ANDRE JONES v. THE STATE.

On October 27, 2016, Andre Jones pled guilty to trafficking a person for sexual servitude, pimping, and pandering. The trial court sentenced Jones to ten years of probation for trafficking, which was consecutive to two concurrent nine-year sentences for pimping and pandering. Thus, Jones’ total sentence was for 19 years, with nine to serve. On March 6, 2018, Jones filed a pro se motion to correct a void sentence, arguing that the trial court erred in failing to impose a split sentence as required by OCGA § 17-10-6.2 (b). The trial court denied the motion, and Jones 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 a motion to vacate or correct a void sentence only if the defendant raises a colorable claim that the sentence is, in fact, void. See Harper v. State, 286 Ga. 216, 217 (1) n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). When a sentence is within the statutory range of punishment, it is not void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). Under OCGA § 17-10-6.2 (b), any person convicted of a sexual offense shall be sentenced to a split sentence, which must include a term of probation of at least one year. The offenses for which Jones was convicted are not included in the statute’s definition of “sexual offenses.” See OCGA § 17-10-6.2 (a). Thus, the statute does not apply to Jones’ sentence. Because Jones has not raised a colorable void-sentence claim, he is not entitled to a direct appeal, and this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/18/2018 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.