Xavier White v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 27, 2019
The Court of Appeals hereby passes the following order:
A20A0095. XAVIER WHITE v. THE STATE.
In 2013, Xavier White pled guilty to multiple crimes, including armed robbery.1
On March 11, 2019, White moved to vacate his sentence, arguing that his 15-year
sentence for armed robbery is void. The trial court denied the motion, and White
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, 348 (691 SE2d 247) (2010).
Once 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. Moreover, a direct appeal does not lie
from the denial of a motion to modify a sentence filed outside the statutory time
period unless the motion raises a colorable claim that the sentence is, in fact, void.
Frazier, 302 Ga. App. at 348.
In his motion to vacate his sentence, White argued that the trial court could
only sentence him to the mandatory minimum term of imprisonment of ten years for
armed robbery pursuant to OCGA § 17-10-6.1 (b). White, however, misreads the
1
White filed a motion to withdraw his guilty plea, which the trial court denied.
We affirmed the ruling in an unpublished opinion. See White v. State, Case No.
A18A0289, decided May 14, 2018.
statute, which provides for a mandatory minimum rather than a mandatory sentence.
Under OCGA § 16-8-41 (b), a person convicted of armed robbery may be punished
by “death or imprisonment for life or by imprisonment for not less than ten nor more
than 20 years.”
Because White’s sentence is within the prescribed statutory limit, it is not void.
Accordingly, he is not entitled to file a direct appeal from the trial court’s order, and
this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/27/2019
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.