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Clark v. State

The defendant's sentence of 20 years to serve in prison for a first offense of child molestation was void, as O.C.G.A. § 17-10-6.2 b expressly provides that a sentence for a first conviction for child molestation must be a split sentence that includes at least the mandatory minimum of five years of imprisonment and at least one year of probation.

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In March 2012, Kirvin Clark pled guilty to one count of child molestation in the Superior Court of Meriwether County, and the trial court sentenced him to twenty years to serve in prison. Six months later, Clark filed a motion to correct an illegal and/or void sentence, contending, inter alia, that his sentence violated OCGA §§ 16-6-4 b 1 and 17-10-6.2 b.1 The trial court denied the motion based upon its conclusion that the sentence was not illegal or void because it fell within the sentence allowable under OCGA § 16-6-4 b 1. Clark appeals, and, for the reasons explained below, we vacate his sentence and remand this case to the trial court for resentencing.

1. Clark contends that the trial court erred in concluding that his sentence was not illegal or void under OCGA §§ 16-6-4 b 1 and 17-10-6.2 b.2 We agree.

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