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Burg v. State

The defendant moved to correct his sentence on three counts of aggravated child molestation well after statutory period for sentence modification under O.C.G.A. § 17-10-1 f expired.

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In November 1989, Daniel James Burg pled guilty to three counts of aggravated child molestation, and the trial court sentenced him to a total of 30 years in prison. Almost eight years later, Burg moved to correct his “void sentence,” arguing that the trial court enhanced the sentence based on false and erroneous information. The trial court denied the motion, and Burg appeals. For reasons that follow, we lack jurisdiction to consider Burg’s arguments. We are compelled, therefore, to dismiss his appeal. The General Assembly has established a specific time frame during which a trial court has jurisdiction to freely modify a criminal sentence. Under OCGA § 17-10-1 f, a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence.1

“A sentence is void if the court imposes punishment that the law does not allow.”2 To support a motion for sentence modification filed outside the statutory time period, therefore, a defendant must demonstrate that the sentence imposes punishment not allowed by law. Moreover, a direct appeal does not lie from the denial of such motion unless it raises a colorable claim that the sentence is, in fact, void.3 Allegations that merely challenge the sentencing procedure or question the fairness of a sentence do not implicate voidness and cannot form the basis for a direct appeal.4

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