McBee v. State , 239 Ga. App. 314 ( 1999 )

521 S.E.2d 209 (1999) 239 Ga. App. 314

McBEE
v.
The STATE.

No. A99A1587.

Court of Appeals of Georgia.

July 23, 1999.

Michael J. McBee, pro se.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

RUFFIN, Judge.

A jury found Michael McBee guilty of rape, aggravated sodomy, and sodomy. The trial court merged the aggravated sodomy and sodomy counts and entered judgment against McBee on the rape and aggravated sodomy counts. We affirmed McBee's convictions in McBee v. State, 228 Ga.App. 16, 491 S.E.2d 97 (1997). McBee then moved to vacate his convictions on the sodomy and aggravated sodomy charges, asserting that those convictions were void in light of the Supreme Court's ruling in Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998). The trial court denied the motion, and McBee appeals. We affirm.

As an initial matter, the trial court's authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered. See State v. Kight, 175 Ga.App. 65, 66(1), 332 S.E.2d 363 (1985); Crumbley v. State, 261 Ga. 610, 611(1), 409 S.E.2d 517 (1991). However, "[a]n exception exists where a sentence is void, i.e., where the court has imposed punishment which the law does not allow." Battle v. State, 235 Ga.App. 101, 102, 508 S.E.2d 467 (1998). "Where a sentence is void, ... the court may resentence the defendant at any time." Crumbley, supra.

McBee contends that the Supreme Court's decision in Powell renders his sodomy and aggravated sodomy convictions void. This contention is without merit. Powell held that the sodomy statute, OCGA § 16-6-2, was unconstitutional only to the extent it criminalized "the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent." Powell, supra at 336(3), 510 S.E.2d 18. See Johnson v. State, 236 Ga.App. 764, 766(4), 513 S.E.2d 291 (1999). To convict a defendant of aggravated sodomy, however, the jury must find that the defendant committed sodomy "with force and against the will of the other person." OCGA § 16-6-2(a). Thus, Powell did not render McBee's conviction for aggravated sodomy void, and the trial court did not err in denying McBee's motion to vacate the conviction. See Johnson, supra. Although the jury also found McBee guilty of simple sodomy, the trial court did not enter judgment on that count, but merged it with the aggravated sodomy conviction. Thus, the only crimes for which McBee was in fact convicted were rape and aggravated sodomy. See Mackey v. State, 235 Ga.App. 209(1), 509 S.E.2d 68 (1998).^[1]

Judgment affirmed.

McMURRAY, P.J., and ANDREWS, P.J., concur.

NOTES

[1] Contrary to McBee's contention, the Supreme Court in Powell did not redefine aggravated sodomy so as to make it indistinguishable from rape, as the two crimes have different elements. See OCGA §§ 16-6-1(a); 16-6-2(a).