X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

McMillian, Judge.On March 13, 2013, appellant Johnny M. Brown entered a negotiated guilty plea to five counts of child molestation. The trial court sentenced Brown to ten years to serve on Count 1 and probation on the remaining counts, for a total sentence of forty years, with the first ten years to be served in confinement and the remainder to be served on probation. On September 21, 2017, Brown filed a motion to correct void sentence based on the trial court’s alleged failure to follow the requirements of former OCGA § 17-10-6.2 (b) in sentencing him.[1] The trial court denied Brown’s motion, and Brown filed this appeal. As more fully set forth below, we now vacate Brown’s sentence and remand for resentencing.   Under the version of the statute in effect in 2013 when Brown was sentenced,[2] the trial court was required to sentence Brown to a “split-sentence” consisting of a minimum term of imprisonment, as specified in the Code section for the offense of child molestation, followed by an additional probated sentence of at least one year on each offense. Former OCGA § 17-10-6.2 (b); Riggs v. State, 301 Ga. 63, 64 (1) (799 SE2d 770) (2017); Jackson v. State, 338 Ga. App. 509, 510-11 (790 SE2d 295) (2016); McCranie v. State, 335 Ga. App. 548, 555 (4) (782 SE2d 453) (2016); Daniels v. State, 344 Ga. App. 190, 191-92 (__ SE2d ___) (2018). Here, the trial court sentenced Brown to confinement only on Count 1 and to probation only on the remaining four counts.[3] The State concedes that Brown was not sentenced as required by former OCGA § 17-10-6.2 (b), but points out that the trial court had discretion under subsection (c) of relevant version of that code section to deviate from the mandates of subsection (b) under certain circumstances, and urges us to remand to the trial court so that the trial court can make findings concerning whether it had reason to deviate in this case. However, subpart (2) of former OCGA § 17-10-6.2 (c) requires the trial court to issue a written order setting forth the reasons for any deviation in sentencing pursuant to this section, and the trial court did not enter such an order in this case. See Jackson, 338 Ga. App. at 510-11; McCranie, 335 Ga. App. at 555-56 (4); Daniels, 344 Ga. App. at 191-92. In the absence of anything in the record to indicate that the trial court intended to deviate from the mandatory minimum as allowed by the applicable version of OCGA § 17-10-6.2 (c),[4] the proper remedy is to vacate the sentence and remand for resentencing.Although Brown does not raise as error the probation only sentences for child molestation,[5] we also note that former OCGA § 17-10-6.2 (b) required that the sentence for any person convicted of a sexual offense include the mandatory minimum term of imprisonment specified in the code section for that offense and “no portion of the mandatory minimum sentence imposed shall be suspended, stayed, or probated . . .” Former OCGA § 17-10-6.2 (b). As we explained above, there was no indication that the trial court entered written findings necessary to deviate from the mandatory minimum. Therefore, those sentences are void for this additional reason. Accordingly, we vacate Brown’s sentence and remand to the trial court for entry of a new sentence on each count as required by former OCGA § 17-10-6.2 (b).[6]Sentence vacated and case remanded for resentencing. Barnes, P. J., and Reese, J., concur

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 18, 2024 - September 19, 2024
Dallas, TX

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
September 24, 2024
Chicago, IL

Women, Influence & Power in Law Awards honors women lawyers who have made a remarkable difference in the legal profession.


Learn More
September 23, 2024 - September 25, 2024
Chicago, IL

WIPL is the original global forum facilitating women-to-women exchange on leadership and legal issues.


Learn More

Associate attorney position at NJ Immigration Law firm: Leschak & Associates, LLC, based in Freehold, NJ, is looking for a full time ass...


Apply Now ›

Javerbaum Wurgaft, a large civil litigation firm with nine (9) offices, seeks: Plaintiff Personal Injury Attorney for Northern New Jersey of...


Apply Now ›

Exciting Career Opportunities at Nuzzo & Roberts! Nuzzo & Roberts, a leading mid-sized insurance defense firm based in Cheshire, CT...


Apply Now ›