Cecil Ray v. State

• Court: Court of Appeals of Georgia
• Decided: June 28, 2012
• Docket: A12A0166
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

June 28, 2012

In the Court of Appeals of Georgia A12A0166. RAY v. THE STATE

BARNES, Presiding Judge.

On November 16, 2004, following a bench trial, Cecil Ray was convicted of

possession of cocaine with intent to distribute, possession of a firearm during the

commission of a crime, giving a false name, obstruction of an officer, false statement

or writing, fleeing or attempting to elude a police officer, driving without insurance,

operating a vehicle without a current decal, improper lane change, and improper lane

usage. The trial court entered an order of nolle prosequi on a charge of possession of

a firearm by a convicted felon, and Ray was found not guilty of driving without a

license. In Ray v. State, 292 Ga. App. 575 (665 SE2d 345) (2008), we affirmed his

conviction on direct appeal. On June 22, 2011, Ray, filed a “Motion to Vacate Void Sentence,” the denial

of which Ray, pro se, now appeals. Ray contends that the trial court improperly

sentenced him on drug charge to serve 35 years without parole as a recidivist under

OCGA § 17-10-7 (c), which provides that

Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

For the reasons which follow, we affirm.

“A sentence is void if it imposes punishment not permitted by law.” (Citation

omitted.) Sledge v. State, 245 Ga. App. 488 (537 SE2d 753) (2000). Thus, a sentence

is void if it imposes a period of confinement or fine greater than the statutory

maximum for the offense or if it imposes punishment for both a greater offense and

a lesser included offense for the same act. Id. at 488-489; Brown v. State, 253 Ga.

App. 1, 3 (2) (557 SE2d 464) (2001). On appeal from the denial of a motion to vacate

2 void sentence, an appellate court will not consider issues which go to the validity of

the defendant’s conviction, but only those that go to the validity of his sentence.

Jordan v. State, 253 Ga. App. 510, 511 (1) (559 SE2d 528) (2002). Questions of law

we review de novo on appeal. O’Neal v. State, 285 Ga. 361, 362 (677 SE2d 90)

(2009).

Ray argues that his sentence is void because during the sentencing hearing the

trial court considered a prior burglary conviction that had previously been admitted

as similar transaction evidence at trial, and that the State’s use of the prior burglary

conviction in the guilt-innocence phase violated the dual use restrictions set forth in

King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984). No trial transcript containing

the court’s sentencing was provided to this court for our review; however, it is clear

from the record that the possession of a firearm by a convicted felon charge was nolle

prossed and thus the prior burglary conviction was not used as a basis for a criminal

conviction and for sentencing purposes.

In King, we held that the State cannot use a prior felony conviction to convict

a convicted felon for being in possession of a firearm, and then use the same prior

conviction to enhance the sentence to the maximum punishment for the offense under

the recidivist statute. Here, the possession of a firearm by a convicted felon was nolle

3 possed and the court used the burglary conviction and two others prior felony

convictions to enhance Ray’s punishment at sentencing. Similarly, in Caver v. State,

215 Ga. App. 711 (452 SE2d 515) (1994), the State first charged Caver with

shoplifting and possession of a firearm by a convicted felon by reason of one prior

felony conviction. Id. at 713 (4). Then, after Caver was convicted of shoplifting, the

State nolle prossed the charge of firearm possession and used the prior felony

conviction that was to be the predicate conviction for that charge to enhance Caver’s

punishment as a recidivist. This court affirmed, finding the State’s procedural

maneuver avoided the obstacles to imposition of recidivist sentencing. Id.

Here, the trial court did not use the prior felony conviction both to support a

conviction on the firearm possession charge and to enhance Ray’s sentence, but only

the latter. Thus, the trial court did not err by considering that conviction in imposing

punishment under OCGA § 17-10-7 (c), and by denying Ray’s motion to vacate the

sentence.

Judgment affirmed. Adams and McFadden, JJ., concur.