Motion to correct sentence. Meriwether Superior Court. Before Judge Baldwin.
Kirvin Clark, pro se.
Peter J. Skandalakis , District Attorney, Robert N. Peterkin , Assistant District Attorney, for appellee.
ELLINGTON, Presiding Judge. Phipps, C. J., concurs. McMillian, J., concurs in Divisions 1, 2 and 4, and in the judgment.
Ellington, Presiding Judge.
In March 2012, Kirvin Clark pled guilty to one count of child molestation in the Superior Court of Meriwether County, and the trial court sentenced him to twenty years to serve in prison. Six months later, Clark filed a motion to correct an illegal and/or void sentence, contending, inter alia, that his sentence violated OCGA § § 16-6-4 (b) (1) and 17-10-6.2 (b). The trial court denied the motion based upon its conclusion that the sentence was not illegal or void because it fell within the sentence allowable under OCGA § 16-6-4 (b) (1). Clark appeals, and, for the reasons explained below, we vacate his sentence and remand this case to the trial court for resentencing.
1. Clark contends that the trial court erred in concluding that his sentence was not illegal or void under OCGA § § 16-6-4 (b) (1) and 17-10-6.2 (b). We agree.
Under OCGA § 16-6-4 (b) (1), " a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years and shall be subject to the sentencing and punishment provisions of Code Sections 17-10-6.2 and 17-10-7[,]" except in circumstances not applicable to this case. OCGA § 17-10-6.2 (b) provides, in relevant part, as follows:
Except as provided in subsection (c) of this Code section,[] and notwithstanding any other provisions of law to [328 Ga.App. 269] the contrary, any person convicted of a sexual offense[]
shall be sentenced to a split sentence [] which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year. ...
We find that the statute's express requirement that the trial court issue a " split sentence" that includes the minimum term of imprisonment and at least one year of probation is plain and unambiguous. As a result, the trial court was not authorized to construe the statute so as to allow the 20-year sentence imposed herein. See Inagawa v. Fayette County, 291 Ga. 715, 718 (2) (732 S.E.2d 421) (2012) (When a statutory provision is clear and susceptible of only one meaning, " judicial construction is both unnecessary and unauthorized." ) (citations and punctuation omitted); Evans v. Employees' Retirement System of Ga., 264 Ga. 729, 731 (1) (450 S.E.2d 195) (1994) (" [T]he use of ...