Gray v. State

358 Ga.App. 811

856 S.E.2d 395

GRAY

v.The STATE.

A19A1258

Court of Appeals of Georgia.

March 9, 2021

Brian Steel, Atlanta, for Appellant.

Orobong Okon Ukpong, Sherry Boston, Decatur, Destiny Hrris Bryant, for Appellee.

Rickman, Presiding Judge.

Mark Gray appeals from the trial court's sua sponte order setting aside a modification of his sentence. In Gray v. State , 310 Ga. 259, 850 S.E.2d 36 (2020), the Supreme Court reversed our previous decision and remanded the case for further proceedings consistent with its opinion. Accordingly, our previous opinion and judgment is vacated and set aside, and the decision of the Supreme Court is hereby made the decision of this Court as to the issue addressed therein.¹ We now address the enumeration of error rendered moot by our previous decision. See St. Paul Reinsurance Co. v. Ross , 276 Ga. App. 135, 136, 622 S.E.2d 374 (2005). For the reasons that follow, we reverse the trial court's sua sponte order.

As more fully set forth in our original opinion, see Gray v. State , 351 Ga. App. 703, 832 S.E.2d 857 (2019), Gray pled guilty to five counts of sexual exploitation of children and was sentenced to ten years to serve in prison followed by ten years on probation, with sexual offender requirements. Gray later moved to modify his sentence. Following a hearing, a substitute judge, sitting by designation, granted a consent order reducing Gray's sentence to a term of five years to serve in prison followed by fifteen years on probation, with sexual offender requirements (the "Modification Order"). Three weeks later, the originally assigned judge, acting sua sponte, filed an order vacating the Modification Order and reinstating Gray's original sentence (the "Reinstatement Order"). The court found the Modification Order "to be inappropriate and not in the interests of justice," and the court cited as authority its "inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion."² Gray timely filed a notice of appeal.

On appeal, Gray argues that the Reinstatement Order is void because he had already begun to serve the reduced sentence at the time that the trial court entered the Reinstatement Order, and, therefore, the trial court lacked the authority to increase his sentence by reimposing the original sentence. The State also contends that the Reinstatement Order is void, but on the ground that the State did not receive notice or an opportunity for a hearing on the issue. We agree with the State.

1. The question raised herein is properly before this Court. "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 parties to consider it." OCGA § 17-9-4. Thus, the appellate courts may address a void sentence even though it was not raised in the trial court or enumerated as error on appeal. See Hulett v. State , 296 Ga. 49, 54 (2), 766 S.E.2d 1 (2014) (noting, however, that the appellate courts have no duty to scour the record for such errors); cf. Dixon v. State , 302 Ga. 691, 697 (4), 808 S.E.2d 696 (2017) (holding, in the context of an illegal sentence imposed because of a merger error, that "an exercise of our discretion on direct appeal to correct [the] merger error that harms a defendant (but of which he has not complained) may avoid unnecessary habeas proceedings and thereby promotes judicial economy.").

2. The...