Tony E. Floyd v. State

• Court: Court of Appeals of Georgia
• Decided: May 5, 2015
• Docket: A15A1539
• Status: Published

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 04, 2015

The Court of Appeals hereby passes the following order:

A15A1539. TONY E. FLOYD v. THE STATE.

In 2002, Tony E. Floyd was convicted of armed robbery and sentenced as a recidivist to life imprisonment. We affirmed his conviction in an unpublished opinion. See Case No. A09A1841 (decided January 28, 2010). In 2015, Floyd filed a motion to void his illegal sentence, which the trial court denied. Floyd now appeals. 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, 347-348 (691 SE2d 247) (2010). Once this statutory period expires, as it had here when Floyd filed his motion, a trial court may modify a sentence only if it is void. See id. A sentence is void only if it imposes punishment that the law does not allow. Von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). “Assertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void.” (Citation and punctuation omitted.) Coleman v. State, 305 Ga. App. 680, 680-681 (700 SE2d 668) (2010). In his void-sentence motion, Floyd alleged that the State failed to provide proper notice of its intent to charge him as a recidivist. However, “such notice requirements are procedural and not substantive in nature. And the failure to adhere to such procedures . . . does not render sentences imposed without such procedures ‘void’ so as to secure direct appellate review subsequent to the first appeal.” (Punctuation and citations omitted.) Ward v. State, 299 Ga. App. 63, 64-65 (682 SE2d 128) (2009); see also Von Thomas, supra at 572-573. Because Floyd did not raise a colorable void-sentence argument, his appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 05/04/2015 Clerk’s Office, Atlanta,____________________ 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.