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Whipkey v. State

Court of Appeals of Georgia, Second Division

October 30, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          RICKMAN, JUDGE.

         Robert 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.

         Where, 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).

         The 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[1] (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.[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).

         Additionally, 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).

         During 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.

         On 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.

         The 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 [2010] case in preparing for a criminal matter I [currently] have pending" against Whipkey.[3]

         Despite 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.[4] 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).

         Here, 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 ...

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