Timothy Bo Reese v. State ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 10, 2016
The Court of Appeals hereby passes the following order:
A16A1078. TIMOTHY BO REESE v. THE STATE.
In November 2013, Timothy Bo Reese pled guilty to aggravated assault and
DUI. He was given a partially probated sentence, and one of the conditions of
probation was banishment from the Ocmulgee Judicial Circuit during the term of
probation. In October 2015, Reese filed a motion for sentence modification, asking
the trial court to remove the banishment condition. The court denied his motion, and
Reese appeals.1 We lack jurisdiction.
Under OCGA § 17-10-1 (f), a trial court may modify a sentence during the year
after its imposition or within 120 days after remittitur following a direct appeal,
whichever is later. See Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247)
(2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this
statutory period expires, a trial court may modify a sentence only if it is void. See
Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only
if it imposes punishment that the law does not allow. Von Thomas v. State, 293 Ga.
569, 571 (748 SE2d 446) (2013).
In his motion, Reese asked the court to exercise its discretion to remove the
banishment condition out of fairness. But “[a]ssertions 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.” (Citation and punctuation
omitted.) Coleman v. State, 305 Ga. App. 680, 680-681 (700 SE2d 668) (2010).
1
Reese appealed to the Supreme Court, which transferred the matter here upon
finding no basis for subject matter jurisdiction there.
Accordingly, Reese’s motion did not raise a colorable void-sentence argument, the
trial court had no power to grant the motion, and Reese is not entitled to appellate
review of the order denying it. See id. This appeal is therefore DISMISSED.
Court of Appeals of the State of Georgia
03/10/2016
Clerk’s Office, Atlanta,____________________
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.