James Benjamin Harris v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 18, 2017

The Court of Appeals hereby passes the following order: A17A0893. JAMES BENJAMIN HARRIS v. THE STATE.

In 2012, James B. Harris pled guilty to several offenses, including child molestation, and the trial court sentenced him to a total of 15 years, with 12 years to serve.1 In 2015, Harris appealed the denial of his motion to vacate a void sentence. We dismissed the appeal on the basis that Harris had not raised a valid void sentence claim. See Case Number A15A1515, dismissed June 5, 2015. In 2016, Harris filed a second Motion to Vacate Void Sentence. The trial court dismissed the motion, and Harris filed this appeal. Once again, we lack jurisdiction. As we have already informed Harris, a trial court has limited authority to modify a sentence after it is imposed. Once the one-year statutory period for modifying a sentence under OCGA § 17-10-1 (f) has expired, the trial court may only modify a sentence if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only if it imposes punishment that the law does not allow. Von Thomas v. State, 293 Ga. 569, 571 (2) (748 SE2d 446) (2013). In a novel legal argument, Harris suggests that OCGA § 17-10-6.2 (b) mandates the trial court sentence him only to the five year minimum to serve with the remainder of his sentence on probation. Five years, however, is the mandatory minimum rather than the mandatory sentence. See OCGA §§ 16-6-4 (4);17-10-1 (f); see also New v. State, 327 Ga. App. 87, 108 (5) (755 SE2d 568) (2014). Accordingly,

1 Harris sought to file an out-of-time appeal from his plea. The trial court denied the motion for out-of-time appeal, and we affirmed the ruling. See Harris v. State, 325 Ga. App. 568 (754 SE2d 148) (2014).

Harris did not raise a colorable argument that his sentence is void, and the trial court’s denial of his motion is not subject to direct appeal. See Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). Furthermore, Harris has already raised a void sentence claim in this Court. The law of the case rule precludes him from relitigating this issue notwithstanding the fact that his prior appeal was dismissed. See Paradise v. State, 321 Ga. App. 371, 373 (740 SE2d 238) (2013). For these reasons, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/18/2017 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.