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Bellamy v. State

The version of the recidivist sentencing statute that was in effect when the defendant was sentenced for murder specifically excluded its provisions from applying to a capital felony such as malice murder, so the trial court's sentence of life without the possibility of parole on that conviction was not legally authorized.

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In 1998, George Bellamy was convicted on one count of murder and two counts relating to possession of a firearm. With respect to the murder count, Bellamy was sentenced as a recidivist to life without the possibility of parole. His convictions were affirmed on appeal. Bellamy v. State, 272 Ga. 157 527 SE2d 867 2000. In 2013, Bellamy filed a motion to vacate his murder sentence, arguing that the sentence was void. See Von Thomas v. State, 293 Ga. 569, 571 2 748 SE2d 446 2013 Although a “sentencing court generally has jurisdiction to modify or vacate . . . a sentence of imprisonment only for one year following the imposition of the sentence . . . a sentencing court has jurisdiction to vacate a void sentence at any time” emphasis in original. The trial court denied the motion on October 23, 2013, prompting this appeal.1 For the reasons that follow, we vacate Bellamy’s sentence for murder and remand this case to the trial court for resentencing on that count.

1. As the State properly concedes, although it did file a notice of its intent to seek recidivist sentencing pursuant to the version of OCGA § 17-10-7 c that was in effect at the time of Bellamy’s sentencing, that version of the statute specifically excluded its provisions from applying to a capital felony such as malice murder. See OCGA § 17-10-7 c 2009. Because of this, under the circumstances presented here, the trial court was not legally authorized to impose a sentence of life without the possibility of parole, making Bellamy’s sentence for malice murder void. See Von Thomas, supra, 293 Ga. at 571 2 “A sentence is void if the court imposes punishment that the law does not allow” citation and punctuation omitted. Accordingly, we must vacate Bellamy’s sentence for malice murder and remand this case for resentencing. See, e.g., Miller v. State, 283 Ga. 412 5 658 SE2d 765 2008.

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