THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 14, 2015
In the Court of Appeals of Georgia
A15A1687. HUDSON v. THE STATE.
ELLINGTON, Presiding Judge.
In January 1996, a Ware County jury found Randy Hudson guilty of armed
robbery, OCGA § 16-8-41, as well as firearms offenses, and the trial court sentenced
him to life in prison for armed robbery, plus a total of 15 years for the other offenses.
In February 2015, Hudson filed a motion to correct void sentence, arguing that
OCGA § 16-8-41 is ambiguous and establishes different punishments for armed
robbery and that the rule of lenity therefore requires that he receive the lesser
punishment. The trial court found that the sentence was not void, and that the court
lacked jurisdiction to resentence Hudson under OCGA § 17-10-1 (f), and dismissed
the motion. Hudson appeals, contending the trial court erred in holding that it lacked
jurisdiction and in ruling that the sentencing scheme established by OCGA § 16-8-41
is not unconstitutionally vague. Finding no reversible error, we affirm.
1. Hudson contends the trial erred in dismissing his motion to correct void
sentence on the basis that it lacked jurisdiction rather than reaching the merits of his
motion. Although the trial court did lack jurisdiction to modify Hudson’s sentence
pursuant to OCGA § 17-10-1 (f), because his motion was not filed within the time
allowed for such a motion,1 “a sentencing court retains jurisdiction to correct a void
sentence at any time.” (Citations and punctuation omitted.) Rooney v. State, 287 Ga.
1, 2 (2) (690 SE2d 804) (2010). “[T]he only ground for authorizing a trial court to
correct a sentence at any time is that the sentence is void. A sentence is void if the
court imposes punishment that the law does not allow.” (Citations and punctuation
omitted.) Id. Hudson did not seek a reduction in his sentence under OCGA § 17-10-1
1
The General Assembly has established a specific time
frame during which a trial court has jurisdiction to freely
modify a criminal sentence. Pursuant to 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.
(Citation and punctuation omitted.) Frazier v. State, 302 Ga. App. 346, 347-348 (691
SE2d 247) (2010).
2
(f) but argued that the trial court had imposed punishment that the law does not allow.
Accordingly, the trial court did not lack jurisdiction solely on the basis of the
expiration of the time allowed under that Code section. The record shows, however,
that the trial court did reach the merits of Hudson’s motion, and reached the correct
conclusion, see Division 2, infra. Therefore, this argument is moot.
2. Hudson contends that OCGA § 16-8-41 (b), which provides that a person
convicted of the offense of armed robbery shall be punished by “imprisonment for life
or by imprisonment for not less than ten nor more than 20 years[,]”2 provides different
gradations of punishment for the same offense. Hudson contends that, as a result of
this ambiguity, the rule of lenity requires that he be sentenced to a term of years,
which, compared to life imprisonment, is the lesser punishment.3
2
Worley v. State, 265 Ga. 251, 252, n. 3 (454 SE2d 461) (1995) (The death
penalty cannot be imposed for armed robbery.); Gregg v. State, 233 Ga. 117, 127
(210 SE2d 659) (1974) (accord).
3
The rule of lenity applies when a statute, or statutes,
establishes, or establish, different punishments for the same
offense, and provides that the ambiguity is resolved in
favor of the defendant, who will then receive the lesser
punishment. . . . The rule of lenity is a rule of construction
that is applied only when an ambiguity still exists after
having applied the traditional canons of statutory
construction. . . . [T]he rule of lenity may be applicable
3
As the trial court noted, in Corey v. State, 216 Ga. App. 180 (454 SE2d 154)
(1995), we rejected the argument that OCGA § 16-8-41 (b) is unconstitutionally
vague because it provides two maximum sentences, one of life imprisonment and
another of 20 years. We explained:
Although the statute allows the sentencing judge broad discretion, it
does not provide two different maximum sentences and is not
unconstitutionally vague. The courts of this state have consistently held
that the maximum penalty upon conviction for armed robbery is life
imprisonment. As an alternative to imposing this maximum sentence,
under OCGA § 16-8-41 (b), a court also has the discretion to impose a
determin[ate] sentence of any period of time between five[4] and twenty
years.
(Citations and punctuation omitted.) Corey v. State, 216 Ga. App. at 180-181.5
where there are different gradations of punishment for the
same offense[.]”
(Citations and punctuation omitted.) McNair v. State, 293 Ga. 282, 283-284 (745
SE2d 646) (2013).
4
In 1994, OCGA § 16-8-41 was amended, and the statutory minimum for
armed robbery was increased from five years to ten years. See Ga. L. 1994, p. 1959,
§ 3.
5
See also Worley v. State, 265 Ga. at 252 (“The armed robbery statute clearly
specifies that a person convicted of armed robbery can be sentenced to prison for life
or a determinate term between five and 20 years[.]”) (citations and punctuation
omitted; emphasis in original); Nihart v. State, 227 Ga. App. 272, 279 (5) (488 SE2d
4
Hudson contends that the rule of lenity has been “expanded” since that
decision, citing McNair v. State, 293 Ga. 282 (745 SE2d 646) (2013), and McNair v.
State, 326 Ga. App. 516 (757 SE2d 141) (2014). In light of the lack of reported
appellate consideration of the import of these decisions in this context, we will not
dismiss Hudson’s appeal on the basis that he fails to raise a colorable claim of a void
sentence.6
Upon close review, however, we conclude that these decisions do not support
Hudson’s voidness claim. In McNair, the Supreme Court of Georgia disapproved a
line of Court of Appeals cases, to the extent they held that, when a statute or set of
740) (1997) (OCGA § 16-6-2 (b), which provides the maximum penalty for an
aggravated sodomy conviction is life imprisonment, and also gives the trial court the
option to impose, as an alternative, a determinate sentence between one and twenty
years imprisonment, is not ambiguous such that the 20-year maximum abrogates the
life imprisonment penalty.).
6
To support a motion for sentence modification filed outside
the statutory time period, therefore, a defendant must
affirmatively 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.
(Citation and punctuation omitted.) Frazier v. State, 302 Ga. App. at 348. See Jones
v. State, 278 Ga. 669, 670-671 (604 SE2d 483) (2004) (dismissing appeal where the
appellant’s post-appeal, post OCGA § 17-10-1 (f) motion seeking sentence
modification did not allege the sentences imposed punishment the law does not
allow).
5
statutes establishes different penalties for the same offense, the rule of lenity could
only be applied when the punishments differed as to misdemeanor versus felony
treatment. McNair v. State, 293 Ga. at 284-285. The Supreme Court emphasized that
“there may be situations in which the rule of lenity could apply to an ambiguity
involving statutes which exact differing felony punishments for the same offense.”
Id. at 284. This explanation of the rule of lenity does not undermine our holding in
Corey v. State, that OCGA § 16-8-41 (b) is not unconstitutionally vague in providing
a maximum sentence of life imprisonment while authorizing an alternative maximum
determinate sentence of 20 years imprisonment.
Because OCGA § 16-8-41 (b) is not ambiguous in its provision for a maximum
sentence of life imprisonment, and because Hudson’s sentence of life imprisonment
falls within the statutory range of punishment, his sentence is not void. Jones v. State,
278 Ga. 669, 670 (604 SE2d 483) (2004) (“When the sentence imposed falls within
the statutory range of punishment, the sentence is not void[.]”). See also Spargo v.
State, 332 Ga. App. 410, 411 (773 SE2d 35) (2015) (accord). Accordingly, Hudson’s
claim of voidness fails. Williams v. State, 331 Ga. App. 46 (1) (769 SE2d 760)
(2015).
Judgment affirmed. Dillard and McFadden, JJ., concur.
6