Kinsey v. State , 259 Ga. App. 653 ( 2003 )

578 S.E.2d 269 (2003) 259 Ga. App. 653

KINSEY
v.
The STATE.

No. A03A0086.

Court of Appeals of Georgia.

February 13, 2003. Certiorari Denied May 19, 2003.

Bernard Kinsey, pro se.

Steven Askew, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

BLACKBURN, Presiding Judge.

In his second appeal before us, Kinsey v. State,^[1] Bernard Kinsey, pro se, appeals the trial court's denial of his motion to vacate a void sentence, arguing, among other things, that he was improperly sentenced as a recidivist to life imprisonment pursuant to OCGA § 17-10-7(a). Because Kinsey, in his present action, contends that his armed robbery sentence was void, and the trial court can impose a new sentence at any time, upon a finding that the original sentence is void, Kinsey's present case is not barred by his prior appeal on different issues. Upon review, we affirm.

Kinsey was convicted by a jury of armed robbery in May 1994. He was sentenced as a recidivist under OCGA § 17-10-7(a) to life in prison, and his conviction and sentence were affirmed on direct appeal. The underlying felony used to support the enhanced sentence was a 1989 conviction for DUI—Habitual Violator.^[2] Seven years after his conviction and sentence for armed robbery were affirmed, Kinsey filed a motion to vacate his sentence, contending that the trial court improperly considered the 1989 DUI conviction as a basis for triggering the recidivist statute. The trial court denied his motion, and he now appeals.

1. "In general, a motion to vacate a sentence is not an appropriate remedy in a criminal case after the term in which the judgment was entered has passed." Hill v. State,^[3] citing Battle v. State.^[4] See also Wade v. State;^[5] OCGA § 17-10-1(f). However, "[w]here a sentence is void, ... the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow." (Citation omitted.) Crumbley v. State.^[6] "If the judgment is not void, a trial court has no further subject matter jurisdiction outside the term of court and the petition must be dismissed." Syms v. State,^[7] quoting Barber v. State.^[8]

Here, the record shows that Kinsey was sentenced to life in prison, a sentence which is within the statutory guidelines for armed robbery even when the conviction is for a first offense. OCGA § 16-8-41(b). Because a life sentence is authorized for armed robbery without regard to recidivism, it is not "a sentence the law does not allow," and cannot be challenged in the trial court outside that court's term as a void sentence. See Hill, supra at 777, 552 S.E.2d 430; Daniels v. State;^[9] compare Moore v. State^[10] (appellant permitted to challenge eight-year-old recidivist sentence where he received a sentence of life without parole for armed robbery under former OCGA § 17-10-7(b)). As Kinsey brought the motion seven years after his conviction, clearly outside the term of court, the trial court lacked subject matter jurisdiction and did not err in denying same.

2. Because of the above holding, it is unnecessary to address appellant's remaining enumerations of error.

Judgment affirmed.

ELLINGTON and PHIPPS, JJ., concur.

NOTES

[1] Kinsey v. State, 219 Ga.App. 204, 464 S.E.2d 648 (1995).

[2] Kinsey, acting pro se, had pled guilty to this DUI violation.

[3] Hill v. State, 249 Ga.App. 776, 777(1), 552 S.E.2d 430 (2001).

[4] Battle v. State, 235 Ga.App. 101, 102, 508 S.E.2d 467 (1998).

[5] Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973).

[6] Crumbley v. State, 261 Ga. 610, 611(1), 409 S.E.2d 517 (1991).

[7] Syms v. State, 244 Ga.App. 21, 534 S.E.2d 502 (2000).

[8] Barber v. State, 240 Ga.App. 156, 157, 522 S.E.2d 528 (1999).

[9] Daniels v. State, 244 Ga.App. 522, 536 S.E.2d 206 (2000).

[10] Moore v. State, 251 Ga.App. 295, 554 S.E.2d 204 (2001).