Tony E. Floyd v. State ( 2015 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 04, 2015
The Court of Appeals hereby passes the following order:
A15A1539. TONY E. FLOYD v. THE STATE.
In 2002, Tony E. Floyd was convicted of armed robbery and sentenced as a
recidivist to life imprisonment. We affirmed his conviction in an unpublished
opinion. See Case No. A09A1841 (decided January 28, 2010). In 2015, Floyd filed
a motion to void his illegal sentence, which the trial court denied. Floyd now appeals.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247)
(2010). Once this statutory period expires, as it had here when Floyd filed his motion,
a trial court may modify a sentence only if it is void. See id. A sentence is void only
if it imposes punishment that the law does not allow. Von Thomas v. State, 293 Ga.
569, 572 (2) (748 SE2d 446) (2013). “Assertions taking issue with the procedure
employed in imposing a valid sentence or questioning the fairness of an imposed
sentence do not allege a sentence is void.” (Citation and punctuation omitted.)
Coleman v. State, 305 Ga. App. 680, 680-681 (700 SE2d 668) (2010).
In his void-sentence motion, Floyd alleged that the State failed to provide
proper notice of its intent to charge him as a recidivist. However, “such notice
requirements are procedural and not substantive in nature. And the failure to adhere
to such procedures . . . does not render sentences imposed without such procedures
‘void’ so as to secure direct appellate review subsequent to the first appeal.”
(Punctuation and citations omitted.) Ward v. State, 299 Ga. App. 63, 64-65 (682
SE2d 128) (2009); see also Von Thomas, supra at 572-573. Because Floyd did not
raise a colorable void-sentence argument, his appeal is hereby DISMISSED for lack
of jurisdiction.
Court of Appeals of the State of Georgia
05/04/2015
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.