X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Dillard, Presiding Judge. Billy Murrell appeals from the trial court’s grant of the State’s motion to “clarify terms of sentence,” which the State filed after learning that Murrell was being considered for parole. Specifically, Murrell argues that the trial court’s “clarification” of his sentence (1) violated the separation of powers by subverting the parole board’s prerogative, and (2) violated due process by imposing a more severe sentence on remand. And because the trial court lacked jurisdiction to issue an order on the State’s motion, we vacate that order and remand this case with direction. Following a trial by jury, Murrell was convicted of child molestation, sexual battery (two counts), aggravated assault, public indecency, false imprisonment, terroristic threats, and stalking (two counts). He was sentenced in 2004 to 35 years’ imprisonment. And on appeal from those convictions, we vacated only the conviction for terroristic threats.[1] A remittitur was then filed in the trial court on April 15, 2013, and approximately one week later, the trial judge entered an order to “[l]et the judgment of the Court of Appeals of Georgia be made the judgment of this court.” But then, over five years later (on September 12, 2018), the same judge issued an “Amended Order on Remittitur,” clearly vacating the conviction for terroristic threats. In July 2020, the State was notified that Murrell was “being tentatively granted parole.” The State immediately contacted the parole board and Georgia Department of Corrections, and the parole board confirmed it was considering Murrell for parole. At that point, in August 2020, the State filed its Motion to Clarify Terms of Sentence because it believed the parole board’s interpretation of Murrell’s sentence was incorrect. Following a hearing on the motion,[2] the trial court—then presided over by a new judge—issued an order granting the State’s motion for clarification. In doing so, the court instructed that the original May 7, 2004 sentencing order intended that Murrell be incarcerated for 35 years and that, even after the count for terroristic threats was vacated, “the remainder of the sentence that was left was intended by the Court to be 30 years to serve.” Murrell appeals from this order. Murrell argues the trial court’s order violates the separation of powers by subverting the parole board’s prerogative to calculate sentences, and that the court’s order violated due process by imposing a more severe sentence on remand, which is presumptively prejudicial. And having considered these arguments, we conclude that the trial court lacked jurisdiction to issue an order on the State’s motion to clarify Murrell’s sentence. According to the State, following the vacation of Count 13, the parole board interpreted Count 12 as running concurrently with Counts 1, 2, 7, 8, 9, and 10. The State contends that by interpreting Count 12 to run concurrently with the earlier counts in the absence of Count 13, Murrell would receive a “10 year ‘discount’ [that] is clearly not what the sentencing [c]ourt intended.” And when the State contacted both the parole board and the Georgia Department of Corrections, those entities advised the State “to seek clarification of the sentence and the intent of the sentencing court” in writing. In its order on the State’s motion, the trial court agreed with the State, concluding that—even after the count for terroristic threats was vacated—”the remainder of the sentence that was left was intended by the [c]ourt to be 30 years to serve,” and clarified that “the [c]ourt intended for Count 12 to be consecutive to Count 13 as well as to all counts to which Count 13 had been consecutive.” But Murrell notes that the State had “multiple opportunities” to seek clarification of his sentence if it was ambiguous, and it failed to do so in a timely manner. In response, the State contends that there was no reason to seek clarification of Murrell’s sentence—which it believed to be perfectly clear—until being advised to do so by the parole board and Department of Corrections.[3] This argument is a nonstarter. Even if the State filed its motion at the behest of the Department of Corrections, which is governed by the terms of OCGA 17-10-10 when computing sentences,[4] the trial court lacked authority to consider the motion to clarify Murrell’s sentence given that it was filed nearly two years after the most recent order in that case. To be sure, a sentencing court “retains jurisdiction to correct a void sentence at any time.”[5] But the issue before the trial court was not whether Murrell’s sentence was void, and thus its jurisdiction was not (and could not be) based upon that principle. Nor did the trial court have jurisdiction under OCGA § 17-10-1 (f), which provides that [w]ithin one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Furthermore, it is well established that “[a] motion in arrest of judgment must be made during the term at which the judgment was obtained.”[6] And here, the State filed its motion to “clarify” Murrell’s sentence almost two years after the term of court expired and well past 120 days of the court’s receipt of the remittitur.[7] As a result, the trial court lacked jurisdiction to consider the motion and should have dismissed it.[8] Additionally, because the trial court lacked jurisdiction,[9] its actions unlawfully increased Murrell’s sentence.[10] So, while it is true that Murrell’s original sentence (as imposed in 2004) required Count 12 to run consecutively with Count 13, when the trial court vacated Count 13, it did not then clarify that Count 12 would thereafter run consecutively with Counts 1, 2, 7, 8, 9, and 10. Thus, under OCGA§ 17-10-10 (a), when “at one term of court a person is convicted . . . on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein.” And as previously noted, this particular Code Section governs and must be followed by “the Department of Corrections in the computation of time that sentences shall run.”[11] Accordingly, by later “clarifying” that Count 12 was—after the vacation of Count 13—to run consecutively with the earlier counts instead of concurrently, the trial court unlawfully increased Murrell’s sentence.[12] Even so, the State appears to hinge the trial court’s jurisdiction to consider its motion to clarify Murrell’s sentence on OCGA § 17-7-1 (5),[13] OCGA § 17-17-13,[14] and a statement from an attorney with the Department of Corrections that it needed something in writing that would clarify the trial court’s intent. But neither an indirect request from the Department of Corrections seeking clarification of a sentence by the trial court nor the ability of victims to submit written objections to the grant of parole bestows the trial court with jurisdiction to consider the State’s motion to “clarify” the terms of Murrell’s sentence.[15] Thus, the trial court should have dismissed the State’s motion. For all these reasons, we vacate the trial court’s order and remand for it to dismiss the State’s motion to clarify Murrell’s sentence.[16] Judgment vacated and case remanded with direction. Mercier and Colvin, JJ., 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

Premium Subscription

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

Team Accounts

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

Bundle Subscriptions

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

Women Influence & Power in Law Awards 2021

October 07, 2021
Washington, DC

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


Register

Women Influence & Power in Law (WIPL) 2021

October 06, 2021 - October 08, 2021
Washington, DC

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


Register

General Counsel Conference Midwest: SuperConference 2021

October 12, 2021 - October 13, 2021
Chicago, IL

GCC Midwest addresses today's legal issues facing companies by providing general counsel with insight and best practices.


Register

CLERK OF COURT

San Francisco, California, United States

U.S. District Court, Northern District of California in San Francisco.This chief executive position requires at least 10 years of administra...


Apply Now ›

Employment Attorney- Long Island- New York

Mineola, New York, United States

Growing Nassau County firm seeks experienced Employment litigator with 2-6 years experience who wants to collaborate with others at establis...


Apply Now ›

Assistant Chief, Special Civil Part

Trenton, New Jersey, United States

(Court Executive 2A) The New Jersey Judiciary seeks an experienced professional with excellent leadership, managerial and communication ski...


Apply Now ›

JAVERBAUM WURGAFT HICKS

09/20/2021
NJLJ Web

JAVERBAUM WURGAFT HICKS mourn the passing of our Co-Founding Partner, collegue, and friend.


View Announcement ›

BARTON GILMAN LLP

09/14/2021
CLT Web

Barton Gilman Expands Into Connecticut


View Announcement ›

BARTON GILMAN LLP

09/14/2021
TLI Web

Barton Gilman LLP is excited to announce that its expansion into Philadelphia


View Announcement ›