FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, 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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 3, 2021
In the Court of Appeals of Georgia
A20A1908. COLLINS v. THE STATE.
REESE, Presiding Judge.
In 2011, a jury found Gerrell Collins guilty of aggravated child molestation, in
violation of OCGA § 16-6-4 (c), and false imprisonment, in violation of OCGA § 16-
5-41. The trial court sentenced Collins to concurrent sentences of 25 years’
imprisonment for aggravated child molestation and 10 years’ imprisonment for false
imprisonment. We affirmed his convictions on direct appeal.1 In 2019, Collins filed
a motion to modify his sentence. The trial court dismissed the motion, finding that the
motion was untimely. Collins now appeals from that order.
1
See Collins v. State, Case No. A14A2112 (decided October 21, 2014)
(unpublished).
Neither the written judgment of conviction nor the oral pronouncement at
sentencing included a term of probation. That lapse renders his sentences void for
failing to comply with the split sentence requirements of former OCGA § 17-10-6.2
(b) and by OCGA § 16-6-4 (d) (1). Accordingly, for the reasons set forth infra, we
vacate Collins’s sentences and remand for resentencing.
1. Under the version of OCGA § 17-10-6.2 (b) in effect at the time of Collins’s
offenses and conviction, after a conviction for false imprisonment where the victim
was less than 14 years old, the trial court must impose a split sentence constituting
a mandatory term of imprisonment plus “an additional probated sentence of at least
one year.”2 Under OCGA § 16-6-4 (d) (1), after a conviction for aggravated child
molestation, the trial court must impose a sentence of “imprisonment for life or by a
2
The current version of OCGA § 17-10-6.2 (b), as amended in 2017, includes
the following highlighted language:
No portion of the mandatory minimum sentence imposed shall be
suspended, stayed, probated, deferred, or withheld by the court. Any
such sentence shall include, in addition to the mandatory term of
imprisonment, an additional probated sentence of at least one year;
provided, however, that when a court imposes consecutive sentences for
sexual offenses, the requirement that the court impose a probated
sentence of at least one year shall only apply to the final consecutive
sentence imposed.
(Emphasis supplied.) See Ga. L. 2017, p. 489, § 5.
2
split sentence that is a term of imprisonment for not less than 25 years and not
exceeding life imprisonment, followed by probation for life[.]”
“A sentence that does not comply with the . . . split-sentence requirement is
void.”3 Although Collins did not directly raise this void sentence issue in his motion
to modify sentence or his brief on appeal, “we may consider this issue sua sponte
because, if the trial court erred in this respect, the sentence imposed would be void.”4
That is because “[w]e are required to correct a void sentence . . . and its illegality may
not be waived.”5
Collins’s sentence for false imprisonment did not include a probated sentence
of at least one year and his sentence for aggravated child molestation did not include
a term of probation of life. Those sentences are thus void.6
3
Hood v. State, 343 Ga. App. 230, 234 (1) (807 SE2d 10) (2017) (citation and
punctuation omitted).
4
Owens v. State, 353 Ga. App. 848, 854 (2) (d) (840 SE2d 70) (2020).
5
Hood, 343 Ga. App. at 234 (1) (citation and punctuation omitted); see also
Nazario v. State, 293 Ga. 480, 485-486 (2) (b) (746 SE2d 109) (2013) (holding that,
in the context of evaluating a merger claim, a reviewing court should vacate an illegal
sentence even if the error was not raised in the trial court or on appeal).
6
See Whitelock v. State, 349 Ga. App. 28, 43 (4) (b) (825 SE2d 426) (2019).
3
We note that, in 2018, Collins filed a motion to vacate a void sentence, arguing
that his false imprisonment conviction was void under OCGA § 17-10-6.2. The trial
court denied the motion, finding that it sentenced him to life probation, and Collins
did not appeal that order. As noted above, Collins’s sentence did not include a term
of life probation. Additionally, former OCGA § 17-10-6.2 requires a split sentence
on each sexual offense conviction.7
Accordingly, for the reasons stated above, we vacate the dismissal of Collins’s
motion to modify sentence, and remand for resentencing.
2. Given our disposition in Division 1, we need not address Collins’s remaining
arguments regarding his sentence.8
Judgment vacated and case remanded for resentencing. Markle and Colvin,
JJ., concur.
7
See State v. Riggs, 301 Ga. 63, 74 (2) (b) (799 SE2d 770) (2017). See also
supra, n. 2.
8
See McClendon v. State, 318 Ga. App. 676, 682 (2) (734 SE2d 505) (2012).
4