William Boileau v. State ( 2019 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 04, 2019
The Court of Appeals hereby passes the following order:
A19A2331. WILLIAM BOILEAU v. THE STATE.
In 2005, William Dean Boileau was convicted of aggravated child molestation
and aggravated sodomy. He was sentenced to 30 years, with 18 years to serve. In
2019, Boileau filed a Motion for Resentencing Under Substantive Change in Law.
The trial court denied the motion, and Boileau filed this 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 only modify a void
sentence. Id. And a direct appeal may lie from an order denying a motion to vacate
or correct a void sentence only if the defendant raises a colorable claim that the
sentence is, in fact, void. See Harper v. State, 286 Ga. 216, 217 (1) n.1 (686 SE2d
786) (2009); Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). When a
sentence is within the statutory range of punishment, it is not void. Jones v. State, 278
Ga. 669, 670 (604 SE2d 483) (2004).
In his motion, Boileau argued that he should be resentenced because, in light
of a change in the law, the trial court would now have jurisdiction to sentence Boileau
to less than the mandatory minimum sentence of ten years. This is not a valid void
sentence argument because “[t]he failure to deviate – or consider deviating – below
a minimum sentence does not render the sentence one that the law does not allow, so
long as the sentences imposed remain within the range of punishments permitted by
law.” Jackson v. State, 338 Ga. App. 509, 510 (790 SE2d 295) (2016) (punctuation
omitted) (citing Jones, 278 Ga. at 670). Accordingly, this appeal is hereby
DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
09/04/2019
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.