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Thomas v. State

The Court lacked jurisdiction over the defendant's appeal of the denial of his motion to "vacate and correct a void sentence" because he failed to raise a valid void sentence claim, as claims challenging the admissibility of evidence of prior convictions for recidivist sentencing purposes do not amount to claims that the sentence imposed was void.

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Frank James Thomas was convicted of burglary and sentenced to a term of imprisonment as a recidivist. Years later, Thomas filed a motion to “vacate and correct a void sentence,” arguing that he should not have been sentenced as a recidivist because the state failed to introduce a true copy of the indictment for one of his prior convictions and because the trial court failed to determine that the probative value of his prior convictions outweighed their prejudicial effect. The trial court denied his motion and Thomas filed this appeal. We, however, lack jurisdiction. Accordingly, we dismiss this appeal.

Under OCGA § 17-10-1 f, a sentencing 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 has expired, a sentencing court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 604 SE2d 483 2004.

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