Antonio Taylor v. State ( 2020 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 26, 2020
The Court of Appeals hereby passes the following order:
A20A1865. ANTONIO TAYLOR v. THE STATE.
Following a bench trial, the trial court found Antonio Taylor guilty of entering
an automobile, possession of tools for the commission of a crime, and misdemeanor
possession of marijuana. Over a year and a half later, Taylor filed a motion to correct
an illegal sentence or, in the alternative, a motion for out-of-time appeal. The trial
court conducted a hearing during which it limited the issue for consideration to
Taylor’s illegal sentence argument.1 The trial court denied the motion, finding that the
sentence entered was proper. Taylor appeals. 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 this statutory period expires, as is the case here, a trial court may modify only
a void sentence. Id. A sentence is void if the court imposes punishment that the law
does not allow. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). “Motions
to vacate a void sentence generally are limited to claims that – even assuming the
existence and validity of the conviction for which the sentence was imposed – the law
does not authorize that sentence, most typically because it exceeds the most severe
punishment for which the applicable penal statute provides.” von Thomas v. State,
1
It appears that Taylor’s motion for out-of-time appeal remains pending below.
Should this motion be denied, Taylor would have a right to appeal the ruling. See
Rowland v. State, 264 Ga. 872, 876 (2) (452 SE2d 756) (1995).
293 Ga. 569, 572 (2) (748 SE2d 446) (2013). When a sentence is within the statutory
range of punishment, it is not void. Jones, 278 Ga. at 670.
In his motion to correct a void sentence, Taylor argued that his sentence for
possession of tools for the commission of a crime merged with his sentence for
entering an automobile. As our Supreme Court has held, however, a claim of merger
is a challenge to the conviction rather than a challenge to the sentence, and thus is not
an appealable void-sentence claim. See Williams v. State, 287 Ga. 192, 193-194 (695
SE2d 244) (2010). Accordingly, this appeal is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/26/2020
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.