State v. Dena King

• Court: Court of Appeals of Georgia
• Decided: November 14, 2013
• Docket: A13A1127
• Status: Published

Opinion

WHOLE COURT

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/

November 14, 2013

In the Court of Appeals of Georgia A13A1127. THE STATE v. KING.

MCFADDEN, Judge.

Pursuant to a negotiated plea agreement, Dena King pled guilty to charges of

robbery and aggravated assault, and the state recommended concurrent 20-year

sentences, with 15 years to be served in prison. The superior court accepted King’s

guilty plea, but announced that it was not going to follow the recommended sentence.

The court then imposed concurrent sentences of 15 years, with 5 years to be served

in prison and the remainder on probation. The state moved to set aside the guilty plea

and sentence, claiming that the trial court was required to follow the state’s

recommended sentence or to give the state a chance to withdraw from the negotiated

plea. The trial court denied the motion, noting, among other things, that all plea

bargains are mere recommendations subject to the trial court’s approval and that sentencing is within the complete purview of the court as long as it is within statutory

limits. The state directly appealed, claiming it is entitled to appeal from allegedly void

sentences. But because the state’s claims do not actually amount to allegations that

the sentences are void, the state cannot directly appeal. Accordingly, this court lacks

jurisdiction and the appeal must be dismissed.

“In OCGA § 5-7-1 (a), the General Assembly has set forth only a limited right

of appeal for the [s]tate in criminal cases. If the [s]tate attempts an appeal outside the

ambit of OCGA § 5-7-1 (a), the appellate courts do not have jurisdiction to entertain

it.” State v. Evans, 282 Ga. 63, 64 (646 SE2d 77) (2007) (citations and punctuation

omitted). In this case, the state contends that it has the right to appeal pursuant to

OCGA § 5-7-1 (a) (6), which provides that the state may 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 state.”1 This statutory

language has indeed been recognized as authorizing the state “to appeal a void

sentence.” State v. Jones, 265 Ga. App. 493 (1) (594 SE2d 706) (2004) (citations

omitted). See also State v. Carden, 281 Ga. App. 886 (637 SE2d 493) (2006).

1 This language was previously set forth in subsection (a) (5) of OCGA § 5-7-1, but was re-designated as subsection (a) (6) by a recent amendment.

2 However, even though the state has couched its appeal in terms of being from

void sentences, its claims of error do not actually amount to allegations that the

sentences are void. As an initial matter, “[a] judgment is not void so long as it is

entered by a court of competent jurisdiction.” State v. Glover, 281 Ga. 633 (641 SE2d

543) (2007) (citations and punctuation omitted). The superior court, of course, had

jurisdiction over this felony case. See Ga. Const. of 1983, Art. VI, Sec. IV, Par. I;

OCGA § 15-6-8 (1). Therefore, “[e]ven assuming the trial court erred, [the judgment

of conviction] is not void as it was entered by a court of competent jurisdiction.”

Glover, supra. See also State v. Yapo, 296 Ga. App. 158, 159 (1) (674 SE2d 44)

(2009) (contrary to state’s argument, the basis for appellate jurisdiction could not be

that the order was void as the order was entered by a court of competent jurisdiction).

As for the sentences imposed by the trial court, “a sentence is void if the court

imposes a 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, ___ Ga. ___ (2) (Case No. S13G0198,

3 decided Sept. 9, 2013) (citations omitted). Here, the state makes no claim that the

sentences imposed by the trial court were not within the statutorily-prescribed range

of punishments. Indeed, the 15-year sentences imposed by the trial court were well

within the 20-year statutory range of punishments for robbery and aggravated assault,

see OCGA §§ 16-5-21 (b) & 16-8-40 (b), and therefore the sentences are not void.

See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004); Few v. State, 311 Ga.

App. 608 (716 SE2d 644) (2011).

With regard to alleged errors in sentencing, claims of error which can be

waived “necessarily do not amount to claims that the sentence imposed was void,

inasmuch as a sentence which is not allowed by law is void, and its illegality may not

be waived.” See Von Thomas v. State, supra at ___ (2) (punctuation and citations

omitted; emphasis in original). Here, the state could have waived its claim that the

trial court erred by imposing sentences different from the negotiated plea

recommendations, and therefore any such claim necessarily does not allege a ground

upon which the sentences could be declared void. Von Thomas, supra. Such a claim

amounts to an “allegation that the [sentence] is voidable, not an allegation that [it] is

void.” Collins v. State, 277 Ga. 586, 587 (591 SE2d 820) (citations omitted).

4 It is readily apparent that the sentence[s are] not void . . . because [they were] imposed when the trial court was without jurisdiction to impose the sentence[s] or because the sentence[s were] contrary to that required by law. [Rather], the [s]tate merely contends that the trial court erred in [disregarding its recommendation] for sentencing. Under the circumstances, . . . we find that the sentence[s are] not [alleged to be] void. Therefore, the appeal must be dismissed for lack of jurisdiction.

Gibbins v. State, 229 Ga. App. 896, 902 (8) (495 SE2d 46) (1997) (citations omitted).

See also Von Thomas, supra at ___ (3) (no jurisdiction to reach merits of appeal

where appellant “did not assert a claim that [the] sentence was void, meaning that it

was a sentence that the law did not allow”); State v. O’Neal, 156 Ga. App. 384, 386

(2) (274 SE2d 575) (1980) (where sentence not void, state not authorized to appeal

from order denying its motion for reconsideration of sentence).

We further note that in State v. Harper, 279 Ga. App. 620 (631 SE2d 820)

(2006), under similar circumstances to the instant case, the state directly appealed

from a trial court’s allegedly erroneous sentence entered “‘in complete disregard of

the plea agreement’ without first notifying the state of its intent to reject the

agreement.” This court ruled that the appeal was authorized because the state can

“directly appeal from an allegedly void sentence.” Id. at 620 (1). To the extent that

Harper conflicts with the instant opinion and holds that the state may directly appeal

from a sentence on the ground that the trial court allegedly erred in disregarding a

5 recommended sentence pursuant to a plea agreement, without first notifying the state

and giving it the opportunity to withdraw, Harper is hereby overruled.

Appeal dismissed. All judges concur.