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Newby v. State

Although defendant couched his claim as an attack on a void sentence, he waived appellate review by failing to raise that alleged error in his prior appeal

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Martin Benjamin Newby was convicted of child molestation, and his conviction was affirmed by this court in Newby v. State , 255 Ga. App. 356 565 SE2d 565 2002. After remittitur, Newby filed a pro se “Petition to Correct Void Judgment” alleging that the trial court improperly considered a prior conviction in sentencing. The trial court denied the petition, observing that “this is an issue that Mr. Newby had an opportunity to take up in his appeal and is not now a matter for this Court to review.” Newby appeals pro se from this order, and we affirm. “Where a sentence is void . . . the court may resentence the defendant at any time. Cit.” Crumbley v. State , 261 Ga. 610, 611 1 409 SE2d 517 1991. But, as Newby acknowledges in his petition and in his brief on appeal, the sentence is void only “if the court imposes punishment that the law does not allow. Cit.” Id.

The sentence imposed upon Newby of twenty years to serve five is authorized for child molestation regardless of any issue of recidivism. OCGA § 16-6-4 b. It therefore “is not ‘a sentence the law does not allow,’ and cannot be challenged in the trial court outside that court’s term as a void sentence.” Citations, footnote, and parenthetical omitted. Kinsey v. State , __Ga. App.__ Case No. A03A0086, decided February 13, 2003. Because Newby brought his petition outside the relevant term of court, the trial court lacked subject matter jurisdiction and did not err in denying it.

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