X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Rickman, Chief Judge. Janet Marie McCullum appeals from a Houston County Superior Court order denying her motion to correct a void sentence, arguing that the recidivist sentence issued by that court became void after a different court granted her retroactive first offender treatment on one of the felonies upon which the recidivist sentence was predicated. As explained below, McCullum failed to present a cognizable claim that her sentence was void; accordingly, the sentencing court should have dismissed McCullum’s motion for lack of jurisdiction. We, therefore, vacate the sentencing court’s order and remand this case with direction that the court dismiss McCullum’s motion. The record shows that in August 2011,[1] McCullum pleaded guilty to one count of trafficking methamphetamine and one count of manufacturing methamphetamine in Houston County. She was sentenced as a recidivist pursuant to OCGA § 17-10-7 (c)[2] and received 40 years, 12 years to serve in incarceration. Her recidivist sentence was predicated upon three prior felony convictions: a 1997 conviction in Peach County, a 2001 conviction in Houston County, and a 2002 conviction in Wilcox County. In July 2015, a Georgia statute became effective which allows a sentencing court to retroactively grant first offender treatment to qualifying defendants. See OCGA § 42-8-66. Subsection (a) of that statute allows a defendant “who was not informed of his or her eligibility for first offender treatment [to], with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge. . . .” Subsection (d) allows for the retroactive application of the statute. In November 2020, McCullum filed a motion in the Peach County Superior Court seeking retroactive first offender treatment for her 1997 conviction. That court granted McCullum’s motion and discharged her without an adjudication of guilt in the 1997 Peach County case. Thereafter, in July 2021, McCullum filed a motion to correct a void sentence in the Houston County Superior Court, arguing that her recidivist sentence was now void. The court considered McCullum’s motion and denied it on the merits. This appeal follows. McCullum’s sole enumeration of error is that the Houston County Superior Court erred by denying her motion because the retroactive grant of first offender treatment for her 1997 Peach County conviction, which served as a predicate felony for her recidivist sentence, rendered her recidivist sentence void. We disagree. But first, we turn to the issue of the sentencing court’s jurisdiction. After a sentencing court has imposed a sentence of imprisonment, its jurisdiction to later modify or vacate that sentence is limited. See OCGA § 17-10-1 (f). Generally, the sentencing court loses jurisdiction to modify or vacate such sentence one year after the sentence has been imposed, although it may vacate a void sentence at any time. See id.; von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013). In this case, McCullum filed her motion to correct her sentence nearly ten years after the sentence was imposed. Thus, the sentencing court “had jurisdiction of [her] motion only to the extent that it presented a cognizable claim that the sentence was void.” von Thomas, 293 Ga. at 571 (2). As discussed below, McCullum did not present a cognizable claim that her sentence was void. It is well established that, “[a] crime is to be punished according to the provisions of the law existing at the time of its commission.” (Citation and punctuation omitted.) Oneill v. State, 352 Ga. App. 103, 105 (834 SE2d 111) (2019). If the law existing at the time a sentence is issued does not allow the punishment imposed, the sentence is void and it may be challenged at any time. See Hendrix v. State, 351 Ga. App. 584, 587-588 (2) (b) (831 SE2d 517) (2019). If, however, the sentence issued falls within the statutory range of punishment, it is not void. See Collins v. State, 338 Ga. App. 886, 888-889 (1) (792 SE2d 134) (2016). Here, there is no dispute that the recidivist sentence issued to McCullum fell within the statutory range of permissible punishment at the time it was imposed. See OCGA § 17-10-7 (c). Thus, the sentence is not void. See Collins, 338 Ga. App. at 888-889 (1). McCullum argues nevertheless that subsection (g) of OCGA § 42-8-66, which extends the statute’s provisions to any sentence issued on or after March 18, 1968, compels a different result.[3] But although subsection (g) defines the oldest conviction to which the benefits of OCGA § 42-8-66 may be conferred, neither it nor anything else in the text of the statute mandates the retroactive nullification of an otherwise lawfully imposed recidivist sentence.[4] Such an extension of the statute would be a task for the legislature, not this Court. See generally Bishop v. State, 341 Ga. App. 590, 591-592 (802 SE2d 39) (2017). Because McCullum’s motion presented no cognizable claim that her sentence was void, the sentencing court should have dismissed the motion for lack of jurisdiction. See von Thomas, 293 Ga. at 571 (2); Kimbrough v. State, 325 Ga. App. 519, 521 (1) (754 SE2d 109) (2014) (holding that a claim challenging the existence or validity of a former conviction used for recidivist punishment does not raise a cognizable void sentence claim). Accordingly, we vacate the order denying McCullum’s motion and remand this case to the sentencing court for dismissal of the motion. Judgment vacated and case remanded with direction. Miller, P. J., and Pipkin, J., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
May 01, 2025
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›