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Kipple v. State

Court of Appeals of Georgia

September 19, 2014

KIPPLE
v.
THE STATE

Motion to correct sentence. Houston Superior Court. Before Judge Lumsden.

John Kipple, pro se.

George H. Hartwig III, District Attorney, for appellee.

Doyle, P. J., and Dillard, J., concur.

OPINION

Miller, Judge.

John Kipple appeals pro se from the trial court's denial of his motion to correct an

Page 753

illegal sentence which he filed more than one year after the entry of his guilty plea to one count of possession of methamphetamine (OCGA § 16-13-30 (a) (2007)).[1] On appeal, Kipple argues that his sentence is contrary to law, and the trial court erred in sentencing him under OCGA § 17-10-7. Because Kipple was a habitual felon under OCGA § 17-10-7, as established by the evidence, we discern no error and affirm.

The record shows that in 2007, while he was on probation for a prior conviction for possession of methamphetamine, Kipple was riding as a passenger in a vehicle during a traffic stop. A pat-down search of Kipple's person revealed some scales with methamphetamine residue. Police also found methamphetamine in the center console of the vehicle.

Kipple was charged by accusation with possession of methamphetamine, and the State filed notice that it intended to introduce matters in aggravation of sentencing. At the guilty plea hearing, the State presented evidence of Kipple's multiple prior felony convictions, including a 1990 conviction for being a habitual violator pursuant to OCGA § 40-5-58, a 1990 conviction for selling marijuana, a 1992 conviction for possession of marijuana with intent to distribute, a 2002 conviction for aggravated assault, and a 2002 conviction for possession of methamphetamine.

[329 Ga.App. 95] Following entry of Kipple's guilty plea, the trial court sentenced him to thirty years with seven years to serve pursuant to OCGA § 17-10-7 (a) and (c). The trial court's order provided that Kipple could serve the remaining twenty-three years of his sentence on probation with special conditions, including completion of a minimum of six months of outpatient rehabilitation.

Kipple contends that OCGA § 16-13-30 (e) is the only sentencing provision applicable in this case, and the trial court erred in applying OCGA § 17-10-7. We disagree.

" Motions to vacate a void sentence generally are limited to claims that ... the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides." (Citations omitted.) von Thomas v. State, 293 Ga. 569, 572 (2) (748 S.E.2d 446) (2013). A cognizable void sentence claim presumes that the trial court was authorized to sentence the defendant but the sentence imposed was not allowed by law. Williams v. State, 287 Ga. 192, 193 (695 S.E.2d 244) (2010). Because Kipple raises a cognizable claim that he was sentenced under the wrong recidivist provision, the trial court's denial of Kipple's motion is directly appealable. See id. Therefore, we review Kipple's claim and conclude that his sentence is not void and is in fact legally appropriate.

The recidivist provisions of OCGA § 16-13-30 (e) (2007) provide for imprisonment for not less than five years nor more than thirty years for a second or subsequent conviction for possession of a Schedule II controlled substance, other than a narcotic drug. Methamphetamine is a Schedule II controlled substance. See OCGA § 16-13-26 (3) (B).

The recidivist provisions of OCGA § 17-10-7 provide for punishment and eligibility for parole of persons convicted of four or more felony offenses.

[T]he General Assembly has expressly indicated its intent that OCGA § 17-10-7 and other recidivist sentencing provisions, such as [OCGA § 16-13-30 (e)], be construed harmoniously. Accordingly, they are not conflicting provisions, and each must be interpreted so as to avoid any ambiguity between them.

Goldberg v. State, 282 Ga. 542, 544 (651 S.E.2d 667) (2007). Moreover, OCGA § 17-10-7 expressly provides that it is supplemental to other provisions relating to recidivist offenders, including OCGA § 16-13-30. See OCGA § 17-10-7 (e). Accordingly, the provisions of OCGA § 17-10-7 [329 Ga.App. 96] must be given

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effect where that statute is applicable according to its terms. See Goldberg, supra, 282 Ga. at 544-545.

Upon his conviction in this case, Kipple was, for sentencing purposes, more than a mere two-time methamphetamine possession offender under the specific recidivist provisions of OCGA § 16-13-30 (e). Given his five prior felony convictions, Kipple was a habitual felon subject to the supplemental provisions of OCGA § 17-10-7. Therefore, the trial court was authorized to sentence Kipple as a habitual felon under OCGA § 17-10-7.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.


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