Michael Brian Rochester v. State ( 2021 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 04, 2021
The Court of Appeals hereby passes the following order:
A21D0156. MICHAEL BRIAN ROCHESTER v. THE STATE.
Michael Brian Rochester pleaded guilty to several offenses, including
trafficking in methamphetamine, and on October 16, 2019, the trial court sentenced
him to a total of 30 years. On November 16, 2020, Rochester filed a motion to modify
his sentence, which the trial court denied. Rochester filed an application for
discretionary appeal from this ruling. The State has filed a motion to dismiss.
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. See von Thomas v. State, 293 Ga. 569, 571 n.5 (748 SE2d 446)
(2013); Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). In its motion
to dismiss, the State argues that Rochester’s motion was not filed within one year of
its imposition. As recognized by the trial court, however, on March 14, 2020, the
Georgia Supreme Court entered an “Order Declaring Statewide Judicial Emergency,”
which tolled filing deadlines. The Order was extended on April 6, May 11, and June
12, 2020, and was extended in part on July 10, 2020.1 These tolling orders served to
suspend the running of statutory deadlines. As of March 14, 2020, 150 days had
elapsed since Rochester had been sentenced. The deadlines resumed running on July
14, 2020, and Rochester filed his motion 125 days later. Accordingly, his motion to
modify was timely.
1
The orders are available at www.gasupreme.us.
The denial of a timely motion to reduce or modify sentence under OCGA § 17-
10-1 (f) is subject to direct appeal. See, e. g., Bowen v. State, 307 Ga. App. 204 (704
SE2d 436) (2010); Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008);
Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003). Under OCGA § 5-6-
35 (j), this Court will grant a timely discretionary application if the lower court's
order is subject to direct appeal. Accordingly, this application is hereby GRANTED.
If he has not already done so, Rochester should file a notice of appeal in the superior
court within ten days of the date of this order. See OCGA § 5-6-35 (g). The clerk of
the superior court is DIRECTED to include a copy of this order in the record
transmitted to the Court of Appeals. The State’s motion to dismiss is hereby
DENIED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/04/2021
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.