Kimbrough appeals the trial court's order denying his
2015 motion to vacate as void his sentence of life in prison
without the possibility of parole, which was imposed under
OCGA § 17-10-7 (b) for a murder he committed in 2004
after being convicted of kidnapping in Florida in 1994. We
February 24, 2005, a Clayton County grand jury indicted
for malice murder and other crimes in connection with the
strangling death of Ramatoulie Demba in July 2004. On
February 1, 2006, the State filed a notice to have Kimbrough
sentenced as a recidivist under OCGA § 17-10-7. At a
trial from February 13 to 20, 2006, the jury found Kimbrough
guilty on all counts, and on March 7, 2006, he was sentenced
to serve life in prison without the possibility of parole for
the murder pursuant to OCGA § 17-10-7 (b) due to his
prior conviction in Florida for kidnapping. In April 2007,
this Court affirmed Kimbrough's convictions on direct
appeal. See Kimbrough v. State, 281 Ga. 885 (644
S.E.2d 125) (2007).
than eight years later, in August 2015, Kimbrough filed a
motion to correct void sentence, arguing that his sentence of
life without parole for murder was void under the sentencing
scheme in effect at the time of Demba's murder. Kimbrough
claimed that Georgia law in 2004 did not authorize a sentence
of life without parole for capital felonies like murder and,
alternatively, that the State's filing of a notice of
intent to seek the death penalty was a prerequisite to a
sentence of life without parole for murder. On November 18,
2015, the trial court denied Kimbrough's motion. He then
filed this appeal.
Kimbrough first contends that his sentence of life without
parole is void under Funderburk v. State, 276 Ga.
554 (580 S.E.2d 234) (2003). Funderburk was sentenced to life
without parole pursuant to OCGA § 17-10-7 (c), a
recidivist provision applying to fourth-time felony
offenders, for a murder that occurred in January 2000. See
Funderburk, 276 Ga. at 554 n.1. At the time of that
murder, § 17-10-7 (c) applied only to the commission of
"a felony . . . other than a capital felony, " and
murder is a capital felony, so that subsection did not
authorize Funderburk's sentence. On direct appeal, this Court
affirmed Funderburk's murder conviction but vacated his
sentence of life without parole and remanded the case to the
trial court with direction to enter a legal sentence. See
Funderburk, 276 Ga. at 556. See also Miller v.
State, 283 Ga. 412, 417 & n.15 (658 S.E.2d 765)
however, was sentenced as a recidivist under OCGA §
17-10-7 (b), addressing second-time offenders for
"serious violent felon[ies], " not § 17-10-7
(c) like Funderburk. When Kimbrough murdered Demba
in July 2004, § 17-10-7 (b) authorized a sentence of
life without parole for "a serious violent felony"
like murder if the defendant previously had been convicted in
Georgia of a "serious violent felony" or had
"been convicted under the laws of any other state or of
the United States of a crime which if committed in this state
would be a serious violent felony." Kimbrough does
not dispute that his 1994 kidnapping conviction in Florida
was for a crime that if committed in Georgia would be a
serious violent felony. OCGA § 17-10-7 (c) begins with the
phrase "[e]xcept as provided in subsection (b), "
and we explained in Funderburk that statutory
provisions other than § 17-10-7 (c) authorized a
sentence of life without parole for murder, including
specifically § 17-10-7 (b):
Although a sentence of life imprisonment without possibility
of parole may be imposed for murder, either as a recidivist
sentence under OCGA § 17-10-7 (b) (2), which requires
that the defendant be previously convicted of a serious
violent felony (see OCGA § 17-10-6.1 (a)), or as an
alternative sentence when the death penalty is sought (see
OCGA § 17-10-31.1), neither of those circumstances is
present in this case.
Funderburk, 276 Ga. at 555 n.2. See also Henry
v. State, 279 Ga. 615, 618 (619 S.E.2d 609) (2005)
(holding, with a "compare" citation of
Funderburk, that "OCGA § 17-10-7 (b)
authorized the trial court to impose life imprisonment
without parole for [a 1997] murder, so long as [the
defendant] was previously convicted of a 'serious violent
felony' as defined in OCGA § 17-10-6.1 (a)").
3. Kimbrough also contends that, even assuming OCGA §
17-10-7 (b) authorized his sentence of life without parole
for murder, his sentence is still void, pointing to opinions
of this Court and the Court of Appeals that included some
broad statements suggesting that a sentence of life without
parole was available for murders committed before April 29,
2009, only if the State had sought the death
penalty. These cases begin with State v.
Ingram, 266 Ga. 324 (467 S.E.2d 523) (1996), where this
We conclude from a consideration of the Act [Ga. L. 1993, p.
1654] as a whole that the Legislature intended the sentence
of life without parole be considered and imposed only when
seeking the death penalty. This conclusion is further
reinforced by Section 9 of the Act, which expressly provides
that "[n]o person shall be sentenced to life without
parole unless such person could have received the death
penalty under the laws of this state. . . ." The
unavoidable result of the legislative enactment is to bar the
State from seeking life without parole unless the State has
filed a notice of intent to seek the death penalty.
Id. at 326. In Johnson v. State, 280
Ga.App. 341 (634 S.E.2d 134) (2006), the Court of Appeals
Johnson contends the trial court erred by sentencing him to
serve a life sentence without parole because the Supreme
Court of Georgia held in [Ingram] that a life
sentence without parole was authorized only in cases in which
the State first sought the death penalty. We must agree.
Id. at 346. In Williams v. State, 291 Ga.
19 (727 S.E.2d 95) (2012), this Court said, citing
Prior to April 29, 2009, a person who was convicted of murder
could either be sentenced to death or life in prison with the
possibility of parole. Life sentences without the possibility
of parole were only imposed in those ...