Randall Nowill v. State ( 2017 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
July 18, 2017
The Court of Appeals hereby passes the following order:
A17A2038. RANDALL NOWILL v. THE STATE.
In 2002, a jury found Randall Nowill guilty of two counts of aggravated child
molestation, child molestation and incest, and the trial court sentenced him to two
consecutive 15-year sentences for aggravated molestation, ten years for child
molestation, and five years for incest, the latter two sentences to run concurrently. We
affirmed Nowill’s convictions on appeal See Nowill v. State, 271 Ga. App. 254 (609
SE2d 188) (2005). Nowill subsequently filed a pro se motion to vacate a void
sentence. The trial court denied the motion, and Nowill filed this direct appeal.
An appeal may lie from an order denying a motion to correct a void sentence
if the defendant raises a colorable claim that the sentence is, in fact, void or illegal.
See Harper v. State, 286 Ga. 216 n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga.
App. 118, 119 (676 SE2d 465) (2009). A sentence is void only if it imposes
punishment that the law does not allow. Crumbley v. State, 261 Ga. 610, 611 (1) (409
SE2d 517) (1991). “Motions to vacate a void sentence generally are limited to claims
that – even assuming the existence and validity of the conviction for which the
sentence was imposed – the law does not authorize that sentence, most typically
because it exceeds the most severe punishment for which the applicable penal statute
provides.” Von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013).
According to Nowill, his sentence is void because the offenses should have
been merged. Such an argument is a challenge to Nowill’s convictions rather than his
sentence and does not constitute a valid void-sentence claim. See Williams v. State,
287 Ga. 192 (695 SE2d 244) (2010).
Nowill also argues his sentence is void because the trial court did not enter a
split sentence. Although OCGA § 17-10-6.2 (b) requires a split sentence for sexual
offenders, this statute was not enacted until 2006. Accordingly, Nowill’s “sentence
is not void because it was authorized by the law as it existed at the time of his
conviction.” McClendon v. State, 287 Ga. App. 515, 516 (651 SE2d 820) (2007).
Because Nowill has not raised a valid void-sentence claim, we lack jurisdiction
to consider his appeal. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010);
Harper, supra. Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
07/18/2017
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.