Curtis Jackson v. State

• Court: Court of Appeals of Georgia
• Decided: May 2, 2013
• Docket: A13A0337
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER and RAY, 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. http://www.gaappeals.us/rules/

May 2, 2013

In the Court of Appeals of Georgia A13A0337. JACKSON v. THE STATE. MI-014C

MILLER, Judge.

Curtis Jackson, pro se, appeals from the trial court’s dismissal of his emergency

motion to modify and vacate a void sentence pursuant to OCGA § 17-10-1 (f).

Jackson contends that the trial court improperly dismissed his motion as untimely,

that his sentence is null and void because it exceeds the statutory maximum, and that

his sentences should not have been imposed consecutively. Further, in his second

enumeration, he contends that, at his sentencing, the trial judge was biased and

invoked his personal emotions against him.

The record shows that a jury found Jackson guilty of two counts of receiving

stolen property (OCGA § 16-8-7 (a)), and one count of operating a vehicle without

a valid license plate. Jackson was sentenced to ten years on each theft by receiving count, to be served consecutively to one another. Jackson filed an appeal of the trial

court’s denial of his motion for an out-of-time appeal, which was affirmed by this

Court in Jackson v. State, 313 Ga. App. 483 (722 SE2d 80) (2011). Jackson applied

for a writ of certiorari, which was denied by the Georgia Supreme Court on October

1, 2012. Jackson v. State, 2012 Ga. LEXIS 1031 (Ga., Oct. 1, 2012). Prior to this,

however, on July 16, 2012, Jackson filed in the trial court his emergency motion to

modify and correct sentence, which the trial court dismissed on August 16, 2012 as

untimely. The remittitur from this Court was issued to the trial court on January 8,

2013.

1. Jackson contends that the trial court incorrectly dismissed as untimely his

motion to modify and vacate sentence. We agree. 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).

Therefore, as shown by the chronology set out above, the trial court’s dismissal

of Jackson’s motion to modify and correct sentence as untimely was error.

2 2. Jackson contends that the trial court erred in imposing consecutive

sentences. We agree. As correctly conceded by the State in its brief, the separate

counts of theft by receiving stolen property may merge as a matter of fact and Jackson

cannot be sentenced for two consecutive 10-year terms.

“[W]ith respect to receiving or concealing stolen property . . . [if] articles stolen

at different times from several persons [are] received and concealed by the same act

. . . then there is but one offense.” (Citations and punctuation omitted.) Hardin v.

State, 141 Ga. App. 115, 118 (4) (232 SE2d 631) (1977); see also Westmoreland v.

State, 151 Ga. App. 850, 851 (261 SE2d 761) (1979).

Therefore, this case must be remanded to the trial court for re-sentencing

consistent with this opinion.

3. We are unable to consider Jackson’s contentions that the trial court was

biased and invoked his personal opinion against Jackson during his sentencing

hearing, because these questions of whether the sentence was fair do not bear on

whether a sentence was void and subject to a sentence modification under OCGA §

17-10-1 (f). See Mosley v. State, 301 Ga. App. 47, 49 (686 SE2d 833) (2009)

(dismissing direct appeal of motion to vacate sentence based on claims asserting

procedural defects). Any allegations of unfairness or bias relating to his sentence

3 should have been raised in Jackson’s first appeal,1 and he cannot raise these issues on

his second appeal. See id. In any event, we have examined the transcript of that

hearing and find no evidence of bias on the part of the trial court.

Judgment reversed and remanded with direction. Barnes, P. J., and Ray, J.,

concur.

1 Jackson’s first appeal was filed untimely, and we dismissed his appeal. See Jackson v. State, 313 Ga. App. 483, 483-484 (722 SE2d 80) (2011). He filed a motion for an out-of-time appeal with the trial court. Id. at 484 The trial court denied his motion, and we affirmed the trial court’s ruling. Id.