Jeffery L. Nutt v. State ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 05, 2018
The Court of Appeals hereby passes the following order:
A18A0878. JEFFERY L. NUTT v. THE STATE.
On September 17, 2012, Jeffery L. Nutt pleaded guilty to aggravated assault
with intent to rape, three counts of battery, and simple battery. He was sentenced to
a total term of ten years’ imprisonment, with two years to serve in prison and the
remainder on probation. After Nutt violated the terms of his probation, the trial court
entered a consent order on August 25, 2016, revoking three years of Nutt’s probation
and terminating the remainder of his probation. In May 2017, Nutt filed a “motion to
vacate void part of sentence,” arguing, in pertinent part, that he was never properly
notified either during the plea colloquy or the entry of final judgment that he would
be required to register as a sexual offender, pursuant to OCGA § 42-1-12, due to his
conviction for aggravated assault with intent to rape. The trial court denied Nutt
relief. Nutt then filed this direct appeal. We, however, lack jurisdiction.
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, 348 (691 SE2d 247) (2010).
Once, as here, this statutory period expires, a trial court may modify only a void
sentence. Id. A sentence is void if the court imposes punishment that the law does
not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). When a sentence
falls within the statutory range of punishment, it is not void and is not subject to
modification beyond the time provided in § 17-10-1 (f). See id.
Nutt is essentially challenging the requirement that he register as a sex offender
because of his underlying conviction for aggravated assault with intent to rape.
Pursuant to OCGA § 42-1-12, any individual convicted of a “dangerous sexual
offense,” including aggravated assault with intent to rape, is required to register as
a sex offender. OCGA § 42-1-12 (a) (10) (B) (i), (e) (2). As such, Nutt has failed to
show that he received a sentence in excess of the statutory range of punishment for
his convictions. To the extent that Nutt’s motion can be construed as a motion to
withdraw his guilty plea such a motion would be untimely. See Ellison v. State, 283
Ga. 461, 461 (660 SE2d 373) (2008) (A motion to withdraw a guilty plea must be
filed in the same term of court in which the plea was entered and the trial court lacks
jurisdiction to grant an untimely motion).
Because Nutt has not raised a colorable claim that his sentence is void, the trial
court’s denial of his motion is not subject to direct appeal. Accordingly, this appeal
is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/05/2018
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.