Ward v. State , 299 Ga. App. 63 ( 2009 )

682 S.E.2d 128 (2009)

WARD
v.
The STATE.

No. A09A1312.

Court of Appeals of Georgia.

June 10, 2009. Reconsideration Dismissed July 14, 2009.

Stephen A. Ward, pro se.

Gregory W. Edwards, Dist. Atty., for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial in 1999, Stephen Ward was convicted of burglary and sentenced as a recidivist under OCGA § 17-10-7(c). He appealed his conviction, which we affirmed in 2000 in Ward v. State.^[1] Eight years later in 2008, he filed a "Motion to Correct Void Sentence," arguing that his sentence was void because the State failed to give proper pretrial notice under former OCGA § 17-10-2(a) (1999) of its intent to use Ward's prior convictions to seek recidivist punishment. Finding that proper notice was given on the day before the trial, the trial court entered an order denying this motion, which order Ward has directly appealed to this Court. The State has moved to dismiss this appeal for lack of jurisdiction. For the reasons set forth below, we grant the State's motion and dismiss this appeal.

"Ordinarily, our determination on direct appeal of a criminal judgment is res judicata, and a criminal defendant is not entitled to another bite at the apple by way of a second appeal." (Punctuation omitted.) King v. State.^[2] See Watts v. State.^[3] Nevertheless, "[a] sentence that is void for any reason ... is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it." (Punctuation omitted.) King, supra, 295 Ga.App. at 865(1), 673 S.E.2d 329. Accordingly, the denial of a motion to correct or vacate a void sentence is directly appealable. Id.

However, in determining whether a purported motion to correct or vacate a void sentence is in fact such a motion, we look to the substance of the motion rather than its nomenclature. Felder v. State.^[4] "[A] sentence is only void when the trial court imposes a punishment that the law does not allow." Jordan v. State.^[5] "When the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f)." Jones v. State.^[6] See Brown v. State^[7] ("post-appeal pleadings filed in the sentencing court seeking sentence modification must set forth why the sentence is void, i.e., how it imposes punishment the law does not allow") (punctuation omitted); Diaz v. State^[8] ("as long as the sentence falls within statutory guidelines, it is not void"). If in fact the motion below did not seek to vacate or correct a sentence on the ground it was void but instead sought to vacate the sentence on other grounds (such as procedural defects), a direct appeal from the denial of this motion will be dismissed. Miller v. State.^[9]

Here, the motion below contended only that the State failed to give proper notice under former OCGA § 17-10-2(a) (1999) that it intended to use certain prior convictions of Ward to seek recidivist punishment. Such notice requirements are procedural and not substantive in nature. See Miller, supra, 264 Ga.App. at 803(c), 592 S.E.2d 450. "And the failure to adhere to such procedures, while subject to timely appellate review as to whether sentence was ``lawfully imposed,' does not render sentences imposed without such procedures ``void' so as to secure [direct] appellate review" subsequent to the first appeal. (Emphasis in original.) Id. at 803-804(c), 592 S.E.2d 450. See Redden v. State^[10] ("the [S]tate's failure to provide the required notice [under former OCGA § 17-10-2(a)] would not have resulted in a void sentence"). Cf. Williams v. State^[11] ("a sentence imposed by a trial court in a non-death penalty case is not rendered void by the court's failure to conduct a presentence hearing under OCGA § 17-10-2"). Indeed, because Georgia law is clear that a defendant may waive such notice requirements^[12] (see Armstrong v. State;^[13]Turner v. State;^[14]Powell v. State^[15]), the lack of such notice can not void the sentence. See Miller, supra, 264 Ga.App. at 803-804(c), 592 S.E.2d 450.

The Supreme Court of Georgia explained this principle further in Jones, supra, 278 Ga. at 670-671, 604 S.E.2d 483:

Assertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post-[OCGA ] § 17-10-1(f) sentence modification. We take this opportunity to clarify that the direct appeal ... is limited to that taken from a sentencing court's ruling on a pleading which asserts the sentence imposed punishment the law does not allow. Rulings on pleadings asserting erroneous procedure ... are not subject to direct appeal because they are not rulings on whether the sentence is void. Rather, a petition for writ of habeas corpus is the means for seeking sentence review for such allegations.

(Emphasis supplied.) See Burg v. State^[16] ("[a]llegations that merely challenge the sentencing procedure ... do not implicate voidness and cannot form the basis for a direct appeal"); Reynolds v. State^[17] ("appeals on such rulings are to be dismissed, not affirmed") (emphasis in original).

Ward is not entitled to multiple bites at the apple. He chose not to raise the issue of defective notice in his first appeal, and he cannot now raise it in a second appeal, as such a defect does not void the sentence. Because we lack jurisdiction to consider this appeal, we grant the State's motion to dismiss the appeal. See Jones, supra, 278 Ga. at 671, 604 S.E.2d 483; Brown, supra, 295 Ga.App. at 68, 670 S.E.2d 867; Guice v. State;^[18]Hughes v. State;^[19]Reynolds, supra, 272 Ga.App. at 95(3), 611 S.E.2d 750.

Appeal dismissed.

ADAMS and DOYLE, JJ., concur.

NOTES

[1] Ward v. State, 242 Ga.App. 246, 529 S.E.2d 378 (2000).

[2] King v. State, 295 Ga.App. 865, 865(1), 673 S.E.2d 329 (2009).

[3] Watts v. State, 261 Ga.App. 29, 581 S.E.2d 625 (2003).

[4] Felder v. State, 274 Ga. 870, 871, 561 S.E.2d 88 (2002).

[5] Jordan v. State, 253 Ga.App. 510, 511(1), 559 S.E.2d 528 (2002).

[6] Jones v. State, 278 Ga. 669, 670, 604 S.E.2d 483 (2004).

[7] Brown v. State, 295 Ga.App. 66, 67, 670 S.E.2d 867 (2008).

[8] Diaz v. State, 279 Ga.App. 134, 136, 630 S.E.2d 618 (2006).

[9] Miller v. State, 264 Ga.App. 801, 804(c), 592 S.E.2d 450 (2003).

[10] Redden v. State, 294 Ga.App. 879, 881(1), 670 S.E.2d 552 (2008).

[11] Williams v. State, 271 Ga. 686, 691(2), 523 S.E.2d 857 (1999).

[12] We note that in the trial and sentencing hearings below, Ward never raised any objection asserting the alleged lack of proper notice under former OCGA § 17-10-2(a) (1999).

[13] Armstrong v. State, 264 Ga. 237, 239(3), 442 S.E.2d 759 (1994).

[14] Turner v. State, 259 Ga.App. 902, 902(1), 578 S.E.2d 570 (2003).

[15] Powell v. State, 229 Ga.App. 52, 53(2), 494 S.E.2d 200 (1997).

[16] Burg v. State, 297 Ga.App. 118, 119, 676 S.E.2d 465, 467 (2009).

[17] Reynolds v. State, 272 Ga.App. 91, 95(3), 611 S.E.2d 750 (2005).

[18] Guice v. State, 282 Ga.App. 747, 748-749(2), 639 S.E.2d 636 (2006).

[19] Hughes v. State, 273 Ga.App. 705, 706, 615 S.E.2d 819 (2005).