Derrick Deon Bentley v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ December 06, 05, 2018

The Court of Appeals hereby passes the following order: A19D0207. DERRICK DEON BENTLEY v. THE STATE.

Derrick Deon Bentley, proceeding pro se, seeks discretionary review of the trial court’s denial of his motion to modify his sentence. Based on the sparse application materials, it appears that Bentley entered a guilty plea to two counts of aggravated assault. On November 6, 2017, the trial court sentenced him to a total term of imprisonment of 40 years with the first 20 to serve and the remainder on probation. On August 20, 2018, Bentley filed a motion to modify sentence, which the trial court denied without a hearing. Bentley then filed the instant application, arguing that the trial court erred in denying his motion without holding a hearing and that the court’s order failed to include any findings of fact or conclusions of law to support its decision. A sentencing court may modify a sentence within one year of its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See OCGA § 17-10-1 (f); Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010). The denial of a timely motion to modify under OCGA § 17-10-1 (f), such as here, is subject to direct appeal. See, e. g., Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003). This Court will grant a timely discretionary application if the lower court’s order is subject to direct appeal. See OCGA § 5-6-35 (j).

Accordingly, this application is hereby GRANTED. Bentley shall have ten days from the date of this order to file a notice of appeal with the trial court if he has not already done so. See OCGA § 5-6-35 (g). The clerk of the superior court is directed to include a copy of this order in the record transmitted to the Court of Appeals.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 12/06/2018 12/05/2018 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.