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Henry v. The State

Although the trial court properly sentenced defendant as a recidivist to life in prison without the possibility of parole on his convictions for two counts of aggravated sodomy, the trial court erred in failing to impose a split sentence on his child molestation conviction; accordingly, the Court vacated the sentence and remanded for resentencing.

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Doyle, Judge.After a jury trial, Timothy Henry was convicted of two counts of aggravated child molestation,^{^[1]} two counts of aggravated sodomy,^{^[2]} and one count of child molestation.^{^[3]} This Court affirmed the conviction on appeal.^{^[4]} Henry filed a motion to correct a void sentence, which motion the trial court denied. Henry appeals, and we vacate Henry’s sentence and remand the case for resentencing.

Although the record lacks a copy of the sentencing sheet, it is undisputed that the trial court merged the two counts of aggravated child molestation into the two counts of aggravated sodomy and sentenced Henry to two consecutive sentences of life without parole. The trial court also sentenced Henry to twenty years imprisonment for the child molestation count, which the court ran consecutive to the two consecutive life sentences.1. Henry first argues that the trial court improperly sentenced him to consecutive life sentences without parole on the two counts of aggravated sodomy. Henry is correct that under normal sentencing, a trial court may not impose a sentence of life imprisonment without the possibility of parole unless the State sought the death penalty in the case.^{^[5]} Nevertheless, in the case of a recidivist offender in whose prosecution the State has filed notice and certified copies of past convictions, such a penalty may be imposed pursuant to OCGA § 17-10-7 (c),^{^[6]} which holds that

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