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Spargo v. State

Court of Appeals of Georgia

May 29, 2015

SPARGO
v.
THE STATE

Motion to vacate sentence. Baker Superior Court. Before Judge Cato.

Judgment vacated and case remanded.

Lonnie P. Spargo, pro se.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge. Dillard and McFadden, JJ., concur.

OPINION

Page 36

Ellington, Presiding Judge.

In 2008, Lonnie Spargo entered a negotiated plea of guilty to two counts of child molestation. The Superior Court of Baker County sentenced Spargo to serve 20 years' imprisonment, consecutively, as to each count. On December 15, 2014, Spargo filed in the sentencing court a " motion to vacate void sentence," alleging that OCGA § 17-10-6.2 (b) requires that a person convicted of a sexual offense must receive a split sentence with at least one year of probation. The trial court denied Spargo's motion, and he appeals. Because binding precedent from this Court supports Spargo's argument, as the State concedes, we vacate Spargo's sentence and remand for resentencing.

" [A] sentencing court retains jurisdiction to correct a void sentence at any time." (Citations and punctuation omitted.) Rooney v. State, 287 Ga. 1, 2 (2) (690 S.E.2d 804) (2010).[1] See OCGA § 17-9-4 (" 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 [332 Ga.App. 411] parties to consider it." ). " [T]he only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow." (Citations and punctuation omitted.) Rooney v. State, 287 Ga. at 2 (2).[2] " When the sentence imposed falls within the statutory range of punishment, [however,] the sentence is not

Page 37

void[.]" (Citation omitted.) Jones v. State, 278 Ga. 669, 670 (1) (604 S.E.2d 483) (2004).[3]

In Clark v. State, 328 Ga.App. 268 (761 S.E.2d 826) (2014), we considered the limitations imposed by OCGA § 17-10-6.2 (b)[4] on punishments authorized by law for sexual offenses and found that the statute " express[ly]" and " unambiguous[ly]" requires " that the trial court issue a 'split sentence' that includes the minimum term of imprisonment and at least one year of probation[.]" Clark v. State, 328 Ga.App. at 269 (1). Thus, for a first conviction for child molestation, a trial court must impose a " split sentence" that includes " at least five years of imprisonment and at least one year of probation, for a total of no more than twenty years." Id. at 270 (2). As a result, we held that [332 Ga.App. 412] a sentence for a first child molestation conviction of twenty years to serve in prison without probation was void. Id. at 270 (1).

Because the trial court in this case sentenced Spargo on each count of child molestation to twenty years imprisonment, the sentences are void. Id. His sentences are therefore vacated, and this case is remanded for resentencing.

Judgment vacated and case remanded. Dillard and McFadden, JJ., concur.


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