Wayne Ross v. State

Court of Appeals of Georgia

Wayne Ross v. State

DecidedMay 17, 2016

DocketA16A1429

StatusPublished

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Wayne Ross v. State, (Ga. Ct. App. 2016).

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Court of Appeals of the State of Georgia

ATLANTA,____________________ May 17, 2016

The Court of Appeals hereby passes the following order:

A16A1429. WAYNE ROSS v. THE STATE.

A jury found Wayne Ross guilty of selling cocaine, possession of cocaine with intent to distribute, and obstruction, and his conviction was affirmed on appeal. See Ross v. State, 313 Ga. App. 695 (722 SE2d 411) (2012). Years later, Ross filed a “Motion to Correct Sentence,” arguing that the trial court abused its discretion in sentencing him to life imprisonment, that he was wrongly sentenced as a recidivist, and that the sentence constituted cruel and unusual punishment. The trial court denied the motion, and Ross filed this appeal. Under OCGA § 17-10-1 (f), a trial court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this statutory period expires, a trial court may modify a sentence only if it is void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only if it imposes punishment that the law does not allow. See Von Thomas v. State, 293 Ga. 569, 571 (748 SE2d 446) (2013). Here, Ross does not argue that his sentence fell outside the permissible statutory range and thus has not raised a colorable void sentence claim.1 Accordingly,

1 Although Ross argues that the trial court erred in sentencing him as a recidivist, he raised this argument in his direct appeal. See Ross, supra at 699 (2). He is thus barred from asserting this argument in a subsequent appeal. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011). we lack jurisdiction over this appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia 05/17/2016 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.

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Court of Appeals of the State of Georgia

ATLANTA,____________________ May 17, 2016

The Court of Appeals hereby passes the following order:

A16A1429. WAYNE ROSS v. THE STATE.

A jury found Wayne Ross guilty of selling cocaine, possession of cocaine with intent to distribute, and obstruction, and his conviction was affirmed on appeal. See Ross v. State, 313 Ga. App. 695 (722 SE2d 411) (2012). Years later, Ross filed a “Motion to Correct Sentence,” arguing that the trial court abused its discretion in sentencing him to life imprisonment, that he was wrongly sentenced as a recidivist, and that the sentence constituted cruel and unusual punishment. The trial court denied the motion, and Ross filed this appeal. Under OCGA § 17-10-1 (f), a trial court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this statutory period expires, a trial court may modify a sentence only if it is void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only if it imposes punishment that the law does not allow. See Von Thomas v. State, 293 Ga. 569, 571 (748 SE2d 446) (2013). Here, Ross does not argue that his sentence fell outside the permissible statutory range and thus has not raised a colorable void sentence claim.1 Accordingly,

1 Although Ross argues that the trial court erred in sentencing him as a recidivist, he raised this argument in his direct appeal. See Ross, supra at 699 (2). He is thus barred from asserting this argument in a subsequent appeal. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011). we lack jurisdiction over this appeal, which is hereby DISMISSED. Court of Appeals of the State of Georgia 05/17/2016 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.

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