P. J., COOMER and MARKLE, JJ.
2016, Pedro Martinez-Chavez entered a negotiated plea to
multiple counts of incest, statutory rape, and child
molestation. He now appeals from the denial of his motion to
withdraw his guilty plea, arguing that the sentence imposed
remains void and that he was entitled to withdraw his plea as
a matter of right prior to resentencing. For the reasons that
follow, we agree with Martinez-Chavez. Accordingly, we vacate
the sentence imposed and remand the case for further
was charged with two counts each of incest, statutory rape,
and child molestation in connection with illicit contact
Martinez-Chavez had with his niece when she was 14 to 15
years old and he was 29. He subsequently pled guilty to all
counts as part of a negotiated plea, and he was sentenced to
20 years' imprisonment on one of the incest counts, a
consecutive 20 years' probation on one of the statutory
rape counts, and concurrent terms of probation on the
remaining counts. He then filed a motion to correct void
sentence because he was not sentenced to a split sentence, as
required by OCGA § 17-10-6.2 (b) (2013). He also filed a
motion to withdraw his plea prior to resentencing.
the trial court granted Martinez-Chavez's motion to
correct void sentence and resentenced him on the incest count
to 20 years, to serve 19 and the balance on probation. The
sentence imposed for the statutory rape charge remained 20
years' probation consecutive to the sentence for incest,
and there was no change to the sentences imposed on the other
counts. In the same order, the trial court denied the motion
to withdraw the guilty plea. Martinez-Chavez now appeals.
Martinez-Chavez first argues that the corrected sentence
remains void because the trial court failed to impose a split
sentence on the statutory rape and child molestation charges.
sentencing court retains jurisdiction to correct a void
sentence at any time. A void sentence is one that imposes
punishment that the law does not allow." (Citation and
punctuation omitted.) Daniels v. State, 344 Ga.App.
190, 191 (809 S.E.2d 473) (2018).
Under OCGA § 17-10-6.2 (b) (2013),
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.
statutory rape and child molestation are subject to the split
sentence requirements in § 17-10-6.2 (b). See OCGA
§§ 16-6-3 (b); 16-6-4 (b) (1); 17-10-6.2 (a)
(2013). And the requirement of split sentences applies to
each count. State v. Riggs, 301 Ga. 63, 65-66 (1)
(799 S.E.2d 770) (2017). Although the legislature amended
OCGA § 17-10-6.2 (b) in 2017 to require that only the
final sentence imposed contain a split sentence rather than
each individual count, the trial court was obligated to
sentence Martinez-Chavez pursuant to the statute in effect at
the time he committed his crime. Compare OCGA §
17-10-6.2 (b) (2013) and (2017); Widner v. State,
280 Ga. 675, 677 (2) (631 S.E.2d 675) (2006) ("[I]t has
long been the law in this State that, in general, a crime is
to be construed and punished according to the provisions of
the law existing at the time of its commission.")
(citation omitted); Richardson v. State, 334 Ga.App.
344, 347 (1) (779 S.E.2d 406) (2015) (Because OCGA §
17-10-6.2 was not in effect when Richardson committed his
crimes, the trial court could not apply its provisions when
resentencing Richardson). Indeed, we have held that the
amendments do not apply retroactively. Hardin v.
State, 344 Ga.App. 378, 388-389 (2) (810 S.E.2d 602)
(2018). Thus, when the trial court resentenced
Martinez-Chavez in 2018, it was still required to impose a
split sentence on each count as required by the statute in
effect at the time he committed his crimes. Id. And
although Martinez-Chavez does not argue that his sentences
for child molestation or the second incest conviction are
void, we must also correct these void sentences. Id.
at 389 (2), n. 13.
Martinez-Chavez is correct that his sentence remains void,
and therefore we must vacate the sentences imposed on the
remaining incest conviction as well as the statutory rape and
the child molestation offenses.
Martinez-Chavez next challenges the trial court's denial
of his motion to withdraw his plea and generally alleges that
his plea was not voluntary. We conclude that the trial court
erred in denying the motion to withdraw the plea.
a sentence is void and the defendant has filed a motion to
withdraw the guilty plea prior to resentencing, the defendant
may withdraw his plea as a matter of right until he is
properly sentenced, even if the motion was filed outside the
term of court in which the sentence was imposed."
Murray v. State, 314 Ga.App. 240, 241 (723 S.E.2d
531) (2012); see also OCGA § 17-7-93 (b) ("At any
time before judgment is pronounced, the accused person may
withdraw the plea of 'guilty' and plead 'not
As a rule, a defendant has an absolute right to withdraw his
plea before sentence is pronounced. Since a void sentence is
the same as no sentence at all, the defendant stands in the
position as if he had pled guilty and not been sentenced, and
so may withdraw his guilty plea as of right before
resentencing, even following the expiration of the term of
court in which the void sentence was pronounced. If