THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
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. https://www.gaappeals.us/rules
August 24, 2023
In the Court of Appeals of Georgia A23A0706. TILMAN v. THE STATE.
FULLER, Senior Judge.
In this criminal action, pro se defendant Davoric Tilman appeals from the
denial of his motion to modify his sentence, arguing, among other things, that a
permanent restraining order imposed as a condition of his probation is void because
it exceeds the term of his sentence. Because we agree with Tilman that the trial court
was not authorized to impose an indeterminate condition of probation, we vacate the
order denying Tilman’s motion to modify his sentence and remand this case for the
trial court to correct the sentencing error.
In 2020, Tilman entered a negotiated guilty plea to one count of committing
terroristic threats and acts, in violation of OCGA § 16-11-37 (b). The trial court
imposed a sentence of four months’ incarceration, to be followed by four years and eight months on probation. As part of his negotiated plea, Tilman agreed to, and the
trial court imposed, a permanent restraining order barring Tilman from any contact
with the victim, her residence, her family’s residences, and her place of work,
“FOREVER.”1 The permanent restraining order states that it was issued under OCGA
§ 16-5-90 (d), which authorizes such orders when a defendant is convicted of stalking
(OCGA § 16-5-90) or aggravated stalking (OCGA § 16-5-91). In September 2022,
Tilman filed a motion to modify his sentence, arguing that the permanent restraining
order is void because it exceeds the term of his probation. The trial court summarily
denied the motion, and this appeal followed.
Among other arguments, Tilman contends on appeal that the permanent
restraining order imposed as a condition of his probation is void because: (i) it was
not authorized under OCGA § 16-5-90 (d), given that he was not convicted of
stalking or aggravated stalking; and (ii) it exceeds the length of his sentence. We
agree with both contentions.
1 The order excepts contact through the court or an attorney for purposes of child support issues. In March 2022, the trial court revoked two months and fifteen days of Tilman’s probation after he violated conditions of his probation other than the restraining order.
2 1. Before addressing the merits of Tilman’s appeal, we must determine whether
we have jurisdiction to do so. See Bradberry v. State, 315 Ga. App. 434, 435 (727
SE2d 208) (2012) (“It is the duty of this Court in all instances to inquire into our
jurisdiction.”) (citation and punctuation omitted). 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, the statutory period expires, a trial
court may modify only a void sentence.2 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) (citation and punctuation omitted). When a sentence falls within the
statutory range of punishment, it is neither void nor subject to modification beyond
the time provided in OCGA § 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. Consequently,
whether we have jurisdiction turns on whether Tilman has asserted a colorable void
2 The record contains no indication that Tilman directly appealed his judgment of conviction, and more than one year has passed since his sentence was imposed.
3 sentence claim. For the reasons discussed in Division 2, a portion of Tilman’s
sentence is void, and we therefore have jurisdiction over this appeal. See id.
2. Under OCGA § 17-10-1 (a) (1) (A), with exceptions not applicable here, a
sentencing judge “shall prescribe a determinate sentence for a specific number of
months or years which shall be within the minimum and maximum sentences
prescribed by law as the punishment for the crime.” Under that Code section,
conditions of probation that exceed the length of a defendant’s sentence are void as
impermissibly indeterminate. Kaiser v. State, 275 Ga. App. 684, 686 (2) (621 SE2d
802) (2005); see Ballenger v. State, 210 Ga. App. 627, 629 (3) (436 SE2d 793) (1993)
(“The conditions of probation cannot exceed the length of the sentence.”); see also
generally State v. Hart, 263 Ga. App. 8, 10 (587 SE2d 164) (2003) (an indeterminate
sentence is void).
While a permanent restraining order is authorized under OCGA § 16-5-90 (d),
that provision applies only to defendants convicted of stalking or aggravated stalking
and thus does not apply here because Tilman was convicted of neither crime. And we
are aware of no other authority empowering a trial court to impose a permanent
restraining order as a condition of probation following a conviction for committing
4 terroristic threats and acts.3 Consequently, the portion of Tilman’s sentence that
extends his restraining order beyond the term of his probation is void. See Kaiser,
275 Ga. App. at 686 (2); Hart, 263 Ga. App. at 10; Ballenger, 210 Ga. App. at 629
(3).
And while Tilman appears to have agreed to the permanent restraining order
here, “[a] defendant’s acquiescence to an illegal sentence, either through plea
negotiations or a failure to object to the sentence, cannot render an otherwise illegal
sentence valid through waiver.” Sanders v. State, 259 Ga. App. 422, 423 (1) (577
SE2d 94) (2003); accord Humphrey v. State, 297 Ga. 349, 350 (773 SE2d 760) (2015)
(“[T]he consent of the parties cannot validate a void sentence.”); Nazario v. State, 293
Ga. 480, 487 (2) (c) (746 SE2d 109) (2013) (“Void convictions and illegal sentences
have never been subject to general waiver rules.”). Thus, acquiescence via a plea
bargain “has no force where the record shows that the bargain at issue was for the
imposition of an illegal sentence.” Nazario, 293 Ga. at 487 (2) (c).
Where, as here, a sentence is void, “the trial court has the discretion to impose
a new sentence consistent with statutory limits.” Pittman v. State, 366 Ga. App. 372,
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THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
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. https://www.gaappeals.us/rules
August 24, 2023
In the Court of Appeals of Georgia A23A0706. TILMAN v. THE STATE.
FULLER, Senior Judge.
In this criminal action, pro se defendant Davoric Tilman appeals from the
denial of his motion to modify his sentence, arguing, among other things, that a
permanent restraining order imposed as a condition of his probation is void because
it exceeds the term of his sentence. Because we agree with Tilman that the trial court
was not authorized to impose an indeterminate condition of probation, we vacate the
order denying Tilman’s motion to modify his sentence and remand this case for the
trial court to correct the sentencing error.
In 2020, Tilman entered a negotiated guilty plea to one count of committing
terroristic threats and acts, in violation of OCGA § 16-11-37 (b). The trial court
imposed a sentence of four months’ incarceration, to be followed by four years and eight months on probation. As part of his negotiated plea, Tilman agreed to, and the
trial court imposed, a permanent restraining order barring Tilman from any contact
with the victim, her residence, her family’s residences, and her place of work,
“FOREVER.”1 The permanent restraining order states that it was issued under OCGA
§ 16-5-90 (d), which authorizes such orders when a defendant is convicted of stalking
(OCGA § 16-5-90) or aggravated stalking (OCGA § 16-5-91). In September 2022,
Tilman filed a motion to modify his sentence, arguing that the permanent restraining
order is void because it exceeds the term of his probation. The trial court summarily
denied the motion, and this appeal followed.
Among other arguments, Tilman contends on appeal that the permanent
restraining order imposed as a condition of his probation is void because: (i) it was
not authorized under OCGA § 16-5-90 (d), given that he was not convicted of
stalking or aggravated stalking; and (ii) it exceeds the length of his sentence. We
agree with both contentions.
1 The order excepts contact through the court or an attorney for purposes of child support issues. In March 2022, the trial court revoked two months and fifteen days of Tilman’s probation after he violated conditions of his probation other than the restraining order.
2 1. Before addressing the merits of Tilman’s appeal, we must determine whether
we have jurisdiction to do so. See Bradberry v. State, 315 Ga. App. 434, 435 (727
SE2d 208) (2012) (“It is the duty of this Court in all instances to inquire into our
jurisdiction.”) (citation and punctuation omitted). 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, the statutory period expires, a trial
court may modify only a void sentence.2 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) (citation and punctuation omitted). When a sentence falls within the
statutory range of punishment, it is neither void nor subject to modification beyond
the time provided in OCGA § 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. Consequently,
whether we have jurisdiction turns on whether Tilman has asserted a colorable void
2 The record contains no indication that Tilman directly appealed his judgment of conviction, and more than one year has passed since his sentence was imposed.
3 sentence claim. For the reasons discussed in Division 2, a portion of Tilman’s
sentence is void, and we therefore have jurisdiction over this appeal. See id.
2. Under OCGA § 17-10-1 (a) (1) (A), with exceptions not applicable here, a
sentencing judge “shall prescribe a determinate sentence for a specific number of
months or years which shall be within the minimum and maximum sentences
prescribed by law as the punishment for the crime.” Under that Code section,
conditions of probation that exceed the length of a defendant’s sentence are void as
impermissibly indeterminate. Kaiser v. State, 275 Ga. App. 684, 686 (2) (621 SE2d
802) (2005); see Ballenger v. State, 210 Ga. App. 627, 629 (3) (436 SE2d 793) (1993)
(“The conditions of probation cannot exceed the length of the sentence.”); see also
generally State v. Hart, 263 Ga. App. 8, 10 (587 SE2d 164) (2003) (an indeterminate
sentence is void).
While a permanent restraining order is authorized under OCGA § 16-5-90 (d),
that provision applies only to defendants convicted of stalking or aggravated stalking
and thus does not apply here because Tilman was convicted of neither crime. And we
are aware of no other authority empowering a trial court to impose a permanent
restraining order as a condition of probation following a conviction for committing
4 terroristic threats and acts.3 Consequently, the portion of Tilman’s sentence that
extends his restraining order beyond the term of his probation is void. See Kaiser,
275 Ga. App. at 686 (2); Hart, 263 Ga. App. at 10; Ballenger, 210 Ga. App. at 629
(3).
And while Tilman appears to have agreed to the permanent restraining order
here, “[a] defendant’s acquiescence to an illegal sentence, either through plea
negotiations or a failure to object to the sentence, cannot render an otherwise illegal
sentence valid through waiver.” Sanders v. State, 259 Ga. App. 422, 423 (1) (577
SE2d 94) (2003); accord Humphrey v. State, 297 Ga. 349, 350 (773 SE2d 760) (2015)
(“[T]he consent of the parties cannot validate a void sentence.”); Nazario v. State, 293
Ga. 480, 487 (2) (c) (746 SE2d 109) (2013) (“Void convictions and illegal sentences
have never been subject to general waiver rules.”). Thus, acquiescence via a plea
bargain “has no force where the record shows that the bargain at issue was for the
imposition of an illegal sentence.” Nazario, 293 Ga. at 487 (2) (c).
Where, as here, a sentence is void, “the trial court has the discretion to impose
a new sentence consistent with statutory limits.” Pittman v. State, 366 Ga. App. 372,
3 We express no opinion on whether a permanent or otherwise lengthy restraining order may be available under procedures extrinsic to this criminal proceeding.
5 373 (1) (883 SE2d 56) (2023) (citation and punctuation omitted). And where only
part of a sentence is void — as also is the case here — a trial court “has discretion to
impose an amended sentence, and that discretion permits the court to either vacate the
entire sentence or strike only the void provision.” Id. at 375 (1); accord State v.
Stanford, 312 Ga. 707, 711 (864 SE2d 448) (2021). Thus, “an invalid condition of
probation does not necessarily render a defendant’s sentence otherwise void so as to
require resentencing except to correct the improper condition of probation.” Hallford
v. State, 289 Ga. App. 350, 352 (1) (657 SE2d 10) (2008); see also id. at 351 (1)
(“Generally, invalid conditions of probation may simply be stricken.”); accord Wyatt
v. State, 113 Ga. App. 857, 859 (3) (b) (149 SE2d 837) (1966) (“The general rule is
that if a sentence is legal in part and illegal in part, and the one may be separated from
the other, that which is legal will be enforced and that which is illegal will be
ignored.”). Consequently, on remand, the trial court retains the discretion to correct
Tilman’s sentence by simply striking that part of his sentence that extends the
restraining order beyond the term of his probation.
Citing Clue v. State, 273 Ga. App. 672 (615 SE2d 800) (2005), Tilman appears
to argue that the illegal indeterminate condition of his probation renders his entire
sentence void because that condition was part of a “package deal” plea agreement.
6 But his reliance on Clue is misplaced. In Clue, the trial court granted the defendant’s
timely motion to withdraw his negotiated guilty pleas to four of six counts of
conviction on the ground that his trial counsel rendered ineffective assistance by
incorrectly advising him as to his parole eligibility for those four counts. 273 Ga.
App. at 672-673. On appeal, we held that the trial court also should have granted the
motion with respect to the remaining two counts because (i) “[t]he finding of
ineffective assistance as to Counts 1-4, the counts for which [the defendant] received
the greatest sentences, undermined the voluntariness and the validity of the plea as
to the remaining counts of the indictment,” id. at 674 (citation and punctuation
omitted), and (ii) it was appropriate to view the defendant’s negotiated plea
agreement as “a package deal, the terms of which should not be treated in isolation
from one another but rather as a cohesive whole,” id. at 675 (punctuation omitted).
Our decision to treat the defendant’s negotiated guilty plea and sentence as a package
deal in Clue must be viewed in the context of (i) a timely motion to withdraw a guilty
plea and (ii) a finding of ineffective assistance as to some counts that necessarily
impacted the defendant’s decision to plead guilty on all counts of conviction. Neither
situation is present here.
7 Because the permanent restraining order constitutes an illegal indeterminate
condition of Tilman’s probation, we vacate the trial court’s order denying his motion
to modify his sentence and remand this case for the trial court to correct his probated
sentence to comply with the law. See OCGA § 42-8-34 (g) (providing that a
sentencing court retains jurisdiction during any period of probation to modify or
correct a probated sentence as necessary).
Judgment vacated and case remanded with direction. Doyle, P. J., and Gobeil,
J., concur.