James Allen Cobb v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ August 10, 2015

The Court of Appeals hereby passes the following order: A15A2284. JAMES ALLEN COBB v. THE STATE.

In 2010, James Cobb pled guilty to burglary and theft by taking, and he was sentenced as a recidivist to fifteen years, to serve ten. In 2014, Cobb filed a motion to correct his sentence. The trial court denied the motion, and Cobb filed this direct appeal. We lack jurisdiction. Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this statutory period expires, as it had when Cobb filed his motion, a trial court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). A direct appeal may lie from the denial of a motion to correct a void sentence only if the defendant raises a colorable claim that the sentence is void. See Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009). A sentence is void only when the trial court imposes a punishment that the law does not allow; assertions taking issue with the procedure employed in imposing the sentence do not constitute colorable void sentence claims. See Coleman v. State, 305 Ga. App. 680 (700 SE2d 668) (2010). Here, Cobb does not allege any colorable void sentence claim. He claims the trial court erred in sentencing him because he was not provided proper notice of the state’s intent to prosecute him as a recidivist, as required by OCGA § 17-10-2 (a). “OCGA § 17-10-2 (a) is not applicable to sentences imposed pursuant to a hearing on a guilty plea.” Burruss v. State, 242 Ga. App. 241, 243 (2) (529 SE2d

375) (2000). Thus, Cobb has not raised a valid void sentence claim, as his sentence does not impose punishment that the law does not allow. Accordingly, this appeal is hereby DISMISSED for lack of jurisdiction.

Court of Appeals of the State of Georgia 08/10/2015 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.