Arnold A. Botchway v. State

Court of Appeals of Georgia

Arnold A. Botchway v. State

DecidedJune 26, 2018

DocketA18D0470

StatusPublished

This text of Arnold A. Botchway v. State (Arnold A. Botchway v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Arnold A. Botchway v. State, (Ga. Ct. App. 2018).

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Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ June 14, 2018

The Court of Appeals hereby passes the following order:

A18D0470. ARNOLD A. BOTCHWAY v. THE STATE.

In July of 2017, Arnold Botchway entered capped negotiated pleas on four separate indictments charging him with multiple counts of identity fraud, theft by taking, and forgery in the first degree. In April of 2018, Botchway filed a motion to vacate and set aside his sentence, arguing that several of the offenses should have merged for sentencing purposes. The trial court denied the motion, and Botchway filed this application for discretionary 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, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118 (676 SE2d 465) (2009). Once this statutory period expires, a trial court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only when the trial court imposes punishment that the law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). “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 Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). In the instant case, Botchway argued below that the trial court erred in failing to merge certain offenses. Botchway’s merger argument is a challenge to his convictions, not to his sentence. See Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010). Because Botchway has not raised a valid void-sentence claim, we lack jurisdiction to consider his application, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/14/2018 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.

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Court of Appeals of the State of Georgia

ATLANTA,____________________ June 14, 2018

The Court of Appeals hereby passes the following order:

A18D0470. ARNOLD A. BOTCHWAY v. THE STATE.

In July of 2017, Arnold Botchway entered capped negotiated pleas on four separate indictments charging him with multiple counts of identity fraud, theft by taking, and forgery in the first degree. In April of 2018, Botchway filed a motion to vacate and set aside his sentence, arguing that several of the offenses should have merged for sentencing purposes. The trial court denied the motion, and Botchway filed this application for discretionary 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, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118 (676 SE2d 465) (2009). Once this statutory period expires, a trial court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only when the trial court imposes punishment that the law does not allow. Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). “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 Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). In the instant case, Botchway argued below that the trial court erred in failing to merge certain offenses. Botchway’s merger argument is a challenge to his convictions, not to his sentence. See Williams v. State, 287 Ga. 192 (695 SE2d 244) (2010). Because Botchway has not raised a valid void-sentence claim, we lack jurisdiction to consider his application, which is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 06/14/2018 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.

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Arnold A. Botchway v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-a-botchway-v-state-gactapp-2018.

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