MILLER, P. J., RICKMAN and REESE, JJ.
Ray Whipkey appeals from an order of the Cobb County Superior
Court that both vacated an earlier order discharging and
dismissing criminal charges brought against Whipkey in 2010
and adjudicated Whipkey guilty of those charges. In his sole
enumeration of error, Whipkey contends that the trial court
lacked jurisdiction to vacate the earlier order, which had
been entered during a previous term of court. For reasons
explained more fully below, we find that the trial court did
have jurisdiction to rule on the State's motion. We
further find, however, that the State failed to show that it
was entitled to have the order of discharge and dismissal set
aside. Accordingly, we reverse the trial court's order.
as here, an appeal presents only a question of law involving
undisputed facts, we review the trial court's order de
novo. Luangkhot v. State, 292 Ga. 423, 424 (736
S.E.2d 397) (2013).
record shows that in September 2010, Whipkey pled guilty to
one count of theft by taking (for stealing items from the
Target store where he was employed) and three counts of
violating the Georgia Controlled Substances Act (for possession
of oxycodone, methamphetamine, and cocaine.) Whipkey entered
his plea pursuant to an agreement negotiated with the State
and under which the State allowed Whipkey to plead under the
Conditional Discharge Statute, OCGA §
16-13-2. Under subsection (a) of that statute, when
any person who has not previously been convicted of a crime
involving the possession of controlled substances pleads
guilty to possessing such drugs,
the court may without entering a judgment of guilt . . .
defer further proceedings and place [such person] on
probation upon such reasonable terms and conditions as the
court may require . . . . Upon violation of a term or
condition, the court may enter an adjudication of guilt and
proceed accordingly. Upon fulfillment of the terms and
conditions, the court shall discharge the person and dismiss
the proceedings against him. Discharge and dismissal under
this Code section shall be without court adjudication of
guilt . . . .
OCGA § 16-13-2 (a).
subsection (c) of the statute provides that any person
charged with possession who is also "charged for the
first time with nonviolent property crimes which, in the
judgment of the court exercising jurisdiction over such
offenses, were related to the accused's addiction to a
controlled substance or alcohol" may be sentenced for
those property crimes pursuant to the provisions of
subsection (a). OCGA § 16-13-2 (c).
the guilty plea hearing, the prosecutor placed Whipkey under
oath and asked him: "You've never pled guilty to any
kind of drug offense; is that correct?" Whipkey
responded, "Yes, sir." The court accepted
Whipkey's plea and placed him on three years probation.
After Whipkey completed his probation, the Probation Division
of the Georgia Department of Corrections filed a petition for
discharge of Whipkey under OCGA § 16-13-2. The trial
court granted that petition, and on May 20, 2014, it entered
an order of discharge.
September 24, 2014, the State filed a motion seeking to have
Whipkey's discharge set aside and to have Whipkey
adjudicated guilty of the previously charged crimes. The
State contended that Whipkey was not eligible for discharge
under OCGA § 16-13-2 because he previously had been
convicted of drug possession and his testimony to the
contrary at the plea hearing constituted perjury. In support
of its motion, the State attached a copy of Whipkey's
1986 conviction for possession of a controlled substance,
entered in Alabama. Whipkey opposed the motion arguing that
because it was filed outside the term of court in which the
discharge order was entered, the trial court lacked
jurisdiction to modify or set aside that order.
trial court held a hearing on the State's motion, and
during that hearing, the State acknowledged that it was aware
of Whipkey's 1986 conviction at the time it agreed to
allow him to proceed under OCGA § 16-13-2. Specifically,
after outlining for the court the fact that Whipkey had lied
under oath at the plea hearing, the prosecutor stated:
"The State has subsequently - I wouldn't say
discovered, because it was actually in the criminal history
that was provided to defense counsel at the time [of
Whipkey's 2010 guilty plea]. . . . But I have since
looked at the  case in preparing for a criminal matter
I [currently] have pending" against
the State's admission that at the time of Whitley's
perjury, the State had in its possession a copy of
Whipkey's criminal history record information (which
referenced Whitley's 1986 conviction for possession of a
controlled substance), the trial court granted the
State's motion, vacated its earlier order, and
adjudicated Whipkey guilty of the 2010 crimes. Specifically,
the court found that because Whipkey had not been eligible
for conditional discharge under OCGA § 16-13-2, his
discharge was analogous to a void sentence and therefore
could be set aside outside the term of court in which it was
entered. Whipkey now appeals from that order.
1. As a
general rule, a trial court lacks jurisdiction to modify any
judgment - including a defendant's sentence - outside the
term of court in which that judgment was
entered. See Barthell v. State, 286
Ga.App. 160, 161 (648 S.E.2d 412) (2007). See also Buice
v. State, 272 Ga. 323, 324 (528 S.E.2d 788) (2000).
Under OCGA § 17-9-4, however, where the judgment of a
court in a criminal case is "void for . . . any
cause," that judgment "is a mere nullity and may be
so held in any court when it becomes material to the interest
of the parties to consider it." Thus, "a sentencing
court retains jurisdiction to correct a void sentence at any
time." (Citation and punctuation omitted.) Rooney v.
State, 287 Ga. 1, 2 (2) (690 S.E.2d 804) (2010). A
sentence is void where "the court imposes punishment
that the law does not allow." (Citation and punctuation
omitted.) Id. at 2 (2).
the State argued, and the trial court found, that because
Whipkey was not eligible to proceed under the Conditional
Discharge Statute, he was not eligible to be discharged and
have his criminal case dismissed without an adjudication of
guilt. The trial court then analogized the discharge order to
a sentence, and concluded that because the
"sentence" of discharge was not allowed under the
circumstances of the case, that sentence was ...