Michael C. Wilkin v. State

• Court: Court of Appeals of Georgia
• Decided: February 3, 2022
• Docket: A22A0897
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ February 03, 2022

The Court of Appeals hereby passes the following order:

A22A0897. MICHAEL C. WILKIN v. THE STATE.

In 2017, Michael C. Wilkin pleaded guilty to four counts of aggravated assault and was sentenced to ten years to serve one. In 2021, Wilkin filed a petition seeking to be retroactively sentenced as a first offender, which the trial court denied. Wilkin filed this direct appeal, however, we 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 this statutory period expires, as here, a trial court may modify only a void sentence. 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). When a sentence falls within the statutory range of punishment, it is not void. See id. Moreover, an 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. Wilkin argues that he should have been sentenced as a first offender, but he does not contend that his sentence exceeded the statutory maximum. See OCGA § 16-5-21 (b) (providing that aggravated assault is punishable by imprisonment for one to twenty years). Thus, Wilkin has not set forth a colorable void-sentence claim. Accordingly, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 02/03/2022 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.