Mark Gray v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
RICKMAN, P. J., and REESE, P. J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 9, 2021
In the Court of Appeals of Georgia
A19A1258. GRAY v. THE STATE.
RICKMAN, Presiding Judge.
Mark Gray appeals from the trial court’s sua sponte order setting aside a
modification of his sentence. In Gray v. State, _ Ga. _ (850 SE2d 36) (2020), the
Supreme Court reversed our previous decision and remanded the case for further
proceedings consistent with its opinion. Accordingly, our previous opinion and
judgment is vacated and set aside, and the decision of the Supreme Court is hereby
made the decision of this Court as to the issue addressed therein.1 We now address
the enumeration of error rendered moot by our previous decision. See St. Paul
1
The Supreme Court held that a trial court has jurisdiction to modify a sentence
outside the one-year period after a sentence is imposed, as authorized under OCGA
§ 17-10-1 (f), when the motion to modify is filed within the one-year period. See
Gray v. State, _ Ga. _ (850 SE2d 36) (2020).
Reinsurance Co. v. Ross, 276 Ga. App. 135, 136 (622 SE2d 374) (2005). For the
reasons that follow, we reverse the trial court’s sua sponte order.
As more fully set forth in our original opinion, see Gray v. State, 351 Ga. App.
703 (832 SE2d 857) (2019), Gray pled guilty to five counts of sexual exploitation of
children and was sentenced to ten years to serve in prison followed by ten years on
probation, with sexual offender requirements. Gray later moved to modify his
sentence. Following a hearing, a substitute judge, sitting by designation, granted a
consent order reducing Gray’s sentence to a term of five years to serve in prison
followed by fifteen years on probation, with sexual offender requirements (the
“Modification Order”). Three weeks later, the originally assigned judge, acting sua
sponte, filed an order vacating the Modification Order and reinstating Gray’s original
sentence (the “Reinstatement Order”). The court found the Modification Order “to be
inappropriate and not in the interests of justice,” and the court cited as authority its
“inherent power during the same term of court in which the judgment was rendered
to revise, correct, revoke, modify or vacate the judgment, even upon his own
motion.”2 Gray timely filed a notice of appeal.
2
The terms of court for the Stone Mountain Circuit, DeKalb County begin on
the first Monday in January, March, May, July, September, and November. OCGA
§ 15-6-3 (37). Thus, both the Modification Order and the Reinstatement Order were
2
On appeal, Gray argues that the Reinstatement Order is void because he had
already begun to serve the reduced sentence at the time that the trial court entered the
Reinstatement Order, and, therefore, the trial court lacked the authority to increase
his sentence by reimposing the original sentence. The State also contends that the
Reinstatement Order is void, but on the ground that the State did not receive notice
or an opportunity for a hearing on the issue. We agree with the State.
1. The question raised herein is properly before this Court. “The judgment of
a court having no jurisdiction of the person or subject matter, or void for any other
cause, is a mere nullity and may be so held in any court when it becomes material to
the interest of the parties to consider it.” OCGA § 17-9-4. Thus, the appellate courts
may address a void sentence even though it was not raised in the trial court or
enumerated as error on appeal. See Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1)
(2014) (noting, however, that the appellate courts have no duty to scour the record for
such errors); cf. Dixon v. State, 302 Ga. 691, 697 (4) (808 SE2d 696) (2017) (holding,
in the context of an illegal sentence imposed because of a merger error, that “an
exercise of our discretion on direct appeal to correct [the] merger error that harms a
entered during the September 2018 term of court.
3
defendant (but of which he has not complained) may avoid unnecessary habeas
proceedings and thereby promotes judicial economy.”).
2. The Reinstatement Order is void. The relevant statute plainly requires proper
notice to the prosecuting attorney for any modification of a sentence:
Prior to entering any order correcting, reducing, or modifying any
sentence, the court shall afford notice and an opportunity for a hearing
to the prosecuting attorney.
OCGA § 17-10-1 (f). The statute further provides that absent notice and an
opportunity for a hearing as stated above, any sentence modification order “shall be
void.” Id. Here, it is undisputed that the Reinstatement Order was issued without
notice or a hearing. Accordingly, under the plain language of the statute, the
Reinstatement Order is void.
Judgment reversed. Miller, P. J., and Reese, P. J., concur.
4