Terry Usher v. State

Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 03, 2015
The Court of Appeals hereby passes the following order:
A15A1709. TERRY USHER v. THE STATE.
A jury found Terry Usher guilty of multiple offenses, including armed robbery,
aggravated assault and kidnapping. Usher appealed following the denial of his motion
for new trial, and this Court affirmed his convictions in an unpublished opinion. See
Usher v. State, Case Number A11A0705, decided June 20, 2011. Several years later,
Usher filed a pro se motion to vacate a void sentence, arguing the trial court
improperly sentenced him as a recidivist. Specifically, Usher asserted that two earlier
cocaine convictions should have been considered a single offense for purposes of
recidivist sentencing. The trial court denied the motion, and Usher appeals.
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, 347-348 (691 SE2d 247)
(2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this
statutory period expires, as it had when Usher filed his motion, a trial court may
modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483)
(2004). A sentence is void only if it imposes punishment that the law does not allow.
von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013). “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.” Id. at 572 (2).
Here, Usher has failed to raise a valid void sentence claim. As noted by the
trial court, Usher had five previous felonies used in aggravation of sentencing.
Accordingly, the trial court was authorized to sentence him as a recidivist
notwithstanding any alleged error in failing to consolidate two of the convictions. See
OCGA § 17-10-7 (c) (holding that a person having been convicted of three or more
felonies shall be sentenced to serve the maximum time provided). Thus, the trial
court’s dismissal of his motion is not subject to direct appeal. Under these
circumstances, we lack jurisdiction to consider this appeal, which is hereby
DISMISSED.
Court of Appeals of the State of Georgia
06/03/2015
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.