Robert James Mincey v. State

• Court: Court of Appeals of Georgia
• Decided: July 1, 2021
• Docket: A21A1660
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ July 01, 2021

The Court of Appeals hereby passes the following order:

A21A1660. ROBERT JAMES MINCEY v. THE STATE.

A jury found Robert James Mincey guilty of armed robbery, and he was sentenced as a recidivist to life without parole. Mincey appealed, and his conviction was affirmed in an unpublished opinion. See Mincey v. State, Case No. A19A1756, decided Nov. 7, 2019. Mincey then filed a motion to correct a void sentence. The trial court denied the motion, and Mincey filed this appeal. We, however, 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, as here, this statutory period expires, a trial court may only modify a void sentence. Id. And a direct appeal may lie from an order denying or dismissing a motion to vacate a void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact, void. See Harper v. State, 286 Ga. 216, 217 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it imposes punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991). “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). Here, Mincey argues his sentence is void because the trial court was not authorized to sentence him to life without parole without first seeking the death penalty. This argument has already been resolved adversely to Mincey. See Bihlear v. State, 341 Ga. App. 364, 366-367 (2) (801 SE2d 68) (2017). Accordingly, Mincey has not raised a colorable void sentence claim, and this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 07/01/2021 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.