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Daniel v. State

The trial judge was entitled to fix defendant's sentence for non-capital offenses.

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Gregory L. Daniel was convicted of robbery and aggravated assault, and his conviction was upheld by this Court in 1999 in an unpublished opinion. On January 9, 2003, Daniel petitioned to correct what he contended was a void sentence. He argued, among other things, that the trial court failed to follow the sentencing procedure required under OCGA § 17-10-2. The trial court denied the petition, and Daniel appeals from that order. 1. The State’s motion to dismiss the appeal is without merit. Daniel alleged below that his sentence was void on the grounds that it was imposed by the judge and not the jury. A direct appeal lies from the denial of a petition attacking a sentence based upon the contention that it is void, including the contention that it is void because of a violation of OCGA § 17-10-2. Williams v. State, 271 Ga. 686, 689 1 523 SE2d 857 1999.

2. But under OCGA § 17-10-2 a, except in cases in which the death penalty or life without parole may be imposed, the judge shall fix and impose the sentence. Because Daniel was convicted of the non-capital offenses of robbery and aggravated assault, his argument that the jury was required to impose the sentence is without merit.

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