State v. Cynthia Devine

• Court: Court of Appeals of Georgia
• Decided: October 23, 2024
• Docket: A24A0981
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., HODGES and WATKINS, 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. https://www.gaappeals.us/rules

October 23, 2024

In the Court of Appeals of Georgia A24A0981. THE STATE v. DEVINE.

WATKINS, Judge.

The State seeks to invoke this Court’s jurisdiction pursuant to OCGA § 5-7-1

(a) (6), contending that the trial court modified Cynthia Devine’s sentence more than

a year after its imposition when the trial court did not have jurisdiction to do so. For

the reasons discussed below, we find that the trial court did not have jurisdiction to

modify Devine’s sentence, and, consequently, we vacate the trial court’s order

modifying her sentence and remand this case with direction. In 2018, Devine was indicted for five counts of exploitation of a disabled adult1

and three counts of identity fraud.2 The indictment charged that, on several occasions,

Devine exploited the victim by obtaining cashier’s checks and making withdrawals

from the victim’s bank account, by using the victim’s debit card, by taking out a life

insurance policy on the victim’s life naming Devine and her husband as beneficiaries,

and by directing the victim to work for Devine’s cleaning business without sufficient

compensation. The indictment also charged Devine for using the victim’s identifying

information — her bank account and debit card numbers — to make payments for

Devine’s benefit.

In 2019, Devine pled guilty to all charges. During her plea and sentence hearing,

Devine proposed, and the State agreed, for Devine to be sentenced to probation prior

to beginning the custodial portion of her sentence so that Devine could pay restitution

to the victim. This unique “backloaded” sentence structure was proposed to allow

Devine to continue working and earning money to pay the restitution owed.

Ultimately, the trial court sentenced Devine to fifteen years to serve five on each

1 See OCGA § 16-5-102. 2 See OCGA § 16-9-121. 2 count, with the sentences running concurrently. The first five years of the sentence

were to be served on probation, with a special condition of probation providing that

Devine and her co-defendant husband would be jointly and severally liable to pay

restitution to the victim in the amount of $75,000 at the rate of $1,500 per month.

Devine was sentenced to report to jail on June 21, 2024, to serve five years in

confinement. The balance of Devine’s probationary sentence was to be served after

she completed the custodial portion of her sentence; however, that probation could

be “terminated” if restitution was fully paid prior to Devine’s release from custody.

Roughly four months after sentencing, Devine moved to modify the restitution

portion of her sentence on the ground that she could not afford the monthly payment.

Following a hearing, the trial court modified Devine’s sentence by severing her

restitution obligation from her co-defendant husband’s obligation. Instead of being

jointly responsible for $1,500 per month, Devine’s modified sentence made her

individually responsible for paying $750 per month in restitution to the victim until

the total amount of restitution was paid or until her sentence expired.3 Nothing else

about Devine’s sentence was modified at this time.

3 The written order for this modification was not originally filed in the record on appeal, but the trial court clerk subsequently supplemented the record. 3 In February 2021, the State petitioned to revoke Devine’s probation for failure

to pay restitution over the past year. The trial court granted the motion. In addition

to revoking Devine’s probation, the trial court modified Devine’s sentence. The trial

court stated: “It is hereby considered, ordered, and adjudged that [Devine] shall be

taken into custody to begin serving the five-year custodial sentence issued by this

court on 6/21/2019. The delayed turn-in date of 6/21/2024 is hereby eliminated as

a requirement of [Devine’s] sentence.”4 Such language had the effect of truncating

Devine’s initial probationary period by over three years and starting the custodial

portion of her sentence earlier. Further, the trial court issued a bench warrant for

Devine’s arrest. According to the State, Devine was arrested in October 2023.

In December 2023, Devine moved to modify her sentence, requesting that the

custodial portion of her sentence be converted to probation due to health issues. The

State opposed the modification, arguing that the trial court lacked jurisdiction to

modify Devine’s sentence because more than a year had passed since her sentence was

entered.5 The trial granted Devine’s motion in January 2024, stating in its order that

4 (Emphasis omitted.) 5 See OCGA § 17-10-1 (f). 4 the written sentence erroneously failed to reflect the intention of the court. The trial

court converted Devine’s sentence to 171 months of probation with a requirement that

Devine pay the victim $400 per month in restitution until the balance was paid. The

State timely appealed this order.

The State’s right to appeal a sentence modification is limited, but the State

contends that this appeal is proper under OCGA § 5-7-1 (a) (6), which permits appeal

“[f]rom an order, decision, or judgment of a court where the court does not have

jurisdiction or the order is otherwise void under the Constitution or laws of this

[S]tate[.]” As the foundation for this contention, the State argues that the trial court

lacked jurisdiction to modify Devine’s sentence in 2024.

The State relies on OCGA § 17-10-1 (f), which provides that:

Within one year of the date upon which the sentence is imposed . . . the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. . . . This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.

5 Here, Devine was originally sentenced in June 2019, and the trial court’s latest

order modifying her sentence was entered in January 2024, which is well beyond the

one-year limit in OCGA § 17-10-1 (f).

In response, Devine argues that the trial court was authorized to modify her

sentence under OCGA § 42-8-34 (g), which provides that

[t]he sentencing judge shall not lose jurisdiction over any person placed on probation during the term of the person’s probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, modify or change the probated sentence . . . at any time during the period of time prescribed for the probated sentence to run.

Upon review of the parties’ arguments and the relevant statutes, we conclude

that the trial court lacked jurisdiction to enter the most recent modification order.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.6

6 (Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 SE2d 337) (2013). 6 Moreover, “[w]hen interpreting a statute, a presumption exists that the legislature did

not intend to enact meaningless language.”7 As is clear from the plain language of the

statute, any jurisdiction retained by the trial court to modify a sentence pursuant to

OCGA § 42-8-34 (g) is constrained to “during the period of time prescribed for the

probated sentence to run.”8 Here, when the trial court revoked Devine’s probation,

it also modified her sentence to cause Devine to “begin serving the five-year custodial

sentence[.]” This particular modification of Devine’s probated sentence was

permissible pursuant to OCGA § 42-8-34 (g) because it happened “during the period

of time prescribed for the probated sentence to run.” When the trial court made its

most recent modification, however, it did so during “the five-year custodial [portion

of Devine’s] sentence[.]” Accordingly, it was not permissible pursuant to OCGA §

42-8-34 (g).

7 (Citation and punctuation omitted.) Pandora Franchising v. Kingdom Retail Group, 299 Ga. 723, 728 (1) (b) (791 SE2d 786) (2016). 8 Emphasis supplied. 7 The trial court stated in its order, and Devine argues on appeal, that the

sentence was modified so as to “reflect the intention of the court[.]”9 But, a review

of the record demonstrates that the present modification does not reflect the original

intention of the sentencing court. The record is quite clear that the State and Devine

intended for her to be sentenced to concurrent sentences of 15 years to be served with

5 years of probation with specified minimum monthly restitution payments, followed

by 5 years in custody with minimum restitution payments, followed by 5 years of

probation which could be “terminated” if full restitution had been paid. The result

of the trial court’s present modification was to convert Devine’s custodial sentence

to a probationary sentence and to further lower her monthly restitution payments.

Such a modification was a significant change from the clear intent of the sentencing

court and it was not within the trial court’s inherent power to modify Devine’s

sentence this way.10

9 See State v. Hart, 263 Ga. App. 8, 9 (587 SE2d 164) (2003) (recognizing a trial court’s “inherent power to correct its records at any time to show the true intent of the sentencing court at the time the original sentence was imposed”) (citation and punctuation omitted). 10 The judge who entered the original sentence and the first modified sentence did not rule on Devine’s most recent motion to modify her sentence. The sentence modification at issue here was entered by a successor judge. 8 Devine argues correctly that sentencing courts are authorized to modify a void

sentence at any time.11 That principle, however, is of no avail to her. “A void sentence

is one that imposes punishment that the law does not allow.”12 Devine argues that the

trial court had jurisdiction to modify her unique sentence of probation followed by

custody followed by probation because it was a void sentence, but she cites no

authority in support of this position. “Generally speaking, Georgia law gives trial

judges great discretion in imposing a sentence within statutory parameters.”13 Indeed,

“[t]he discretionary assessment of punishment within legislatively prescribed

boundaries has long been ingrained and accepted in American jurisprudence.”14 This

is so that trial courts have “the discretion to fashion sentences that fit the crimes for

which the defendant is convicted, so long as the sentences fall within the statutory

ranges.”15

11 See Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). 12 (Citation omitted.) Thomas v. State, 371 Ga. App. 250, 252 (1) (899 SE2d 854) (2024). 13 Parrott v. State, 312 Ga. 580, 583 (3) (864 SE2d 80) (2021). 14 (Citation omitted.) Rooney, 287 Ga. at 3 (3). 15 State v. Riggs, 301 Ga. 63, 68 (2) (a) (799 SE2d 770) (2017). 9 We find within the law no limitation on this broad discretion that would preclude a trial court from [sentencing a defendant to a term of probation prior to the custodial portion of her sentence.] And in construing other statutes related to sentencing, we have found that a trial court’s discretion is limited only by an express legislative act[.]16

Although the language of multiple statutes cited by Devine seem to presuppose that

a custodial sentence will precede any term of probation, the text of those statutes does

not mandate such a chronology. For instance, OCGA § 17-10-1 (4) provides that “[i]n

cases of imprisonment followed by probation, the sentence shall specifically provide

that the period of probation shall not begin until the defendant has completed service

of the confinement portion of the sentence.” A plain reading of that statute, however,

does not foreclose a sentence of probation followed by confinement. Given that the

legislature has not prohibited Devine’s unique sentence structure, it was not void.

As there are no applicable exceptions to OCGA § 17-10-1 (f)’s limitation on the

length of time in which the trial court had jurisdiction to modify Devine’s sentence,

the trial court was without jurisdiction to modify Devine’s sentence in 2024; thus, we

have appellate jurisdiction over this case pursuant to OCGA § 5-7-1 (a) (6). And given

16 Id. 10 that the trial court acted without jurisdiction, we vacate the trial court’s order

modifying Devine’s sentence and remand the case to the trial court with direction to

reinstate her prior sentence.

Judgment vacated and case remanded with direction. Doyle, P. J., and Hodges, J.,

concur.