Spargo v. State

The defendant's sentences of 20 years' imprisonment, consecutively, as to each of two child molestation convictions were void, since a person convicted of a sexual offense must receive a split sentence with at least one year of probation under O.C.G.A. § 17-10-6 subsection b.

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In 2008, Lonnie Spargo entered a negotiated plea of guilty to two counts of child molestation. The Superior Court of Baker County sentenced Spargo to serve 20 years’ imprisonment, consecutively, as to each count. On December 15, 2014, Spargo filed in the sentencing court a “motion to vacate void sentence,” alleging that OCGA § 17-10-6 b requires that a person convicted of a sexual offense must receive a split sentence with at least one year of probation. The trial court denied Spargo’s motion, and he appeals. Because binding precedent from this Court supports Spargo’s argument, as the State concedes, we vacate Spargo’s sentence and remand for resentencing.

“A sentencing court retains jurisdiction to correct a void sentence at any time.” Citations and punctuation omitted. Rooney v. State, 287 Ga. 1, 2 2 690 SE2d 804 2010.1 See OCGA § 17-9-4 “The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”. “The only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow.” Citations and punctuation omitted. Rooney v. State, 287 Ga. at 2 2.2 “When the sentence imposed falls within the statutory range of punishment, however, the sentence is not void.” Citation omitted. Jones v. State, 278 Ga. 669, 670 1 604 SE2d 483 2004.3

Spargo v. State

The defendant's sentences of 20 years' imprisonment, consecutively, as to each of two child molestation convictions were void, since a person convicted of a sexual offense must receive a split sentence with at least one year of probation under O.C.G.A. § 17-10-6 subsection b.

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