Whitney Lorraine Flowers v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 26, 2020

The Court of Appeals hereby passes the following order: A20D0379. WHITNEY LORRAINE FLOWERS v. THE STATE.

It appears from the limited application materials that Whitney Lorraine Flowers pleaded guilty to armed robbery in May 2019. In January 2020, she filed a motion to modify or reduce her sentence. The trial court denied the motion, and Flowers filed this application for discretionary appeal.1 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. See von Thomas v. State, 293 Ga. 569, 571 n. 5 (2) (748 SE2d 446) (2013); Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). The denial of a timely motion to reduce or modify sentence under § 17-10-1 (f) is subject to direct appeal. See Bowen v. State, 307 Ga. App. 204 (704 SE2d 436) (2010); Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260 Ga. App. 580 (580 SE2d 330) (2003). Flowers’s motion appears to have been timely

1 The trial court’s order was entered on February 28, 2020, and Flowers filed this application on May 1, 2020. Under ordinary circumstances, the period for Flowers to file the application would have expired on March 30, 2020. See OCGA § 5-6-35 (d) (applications for discretionary appeal shall be filed within 30 days of entry of the order to be appealed). However, in light of the tolling provisions in the Supreme Court’s Order Declaring Statewide Judicial Emergency and the first extension thereof, we accept the application as timely filed. See Order Declaring Statewide Judicial Emergency (Mar. 14, 2020), Order Extending Declaration of Statewide Judicial Emergency (Apr. 6, 2020), and Second Order Extending Declaration of Statewide Judicial Emergency (May 11, 2020), all available at https://www.gasupreme.us.

under § 17-10-1 (f), as it was filed within one year of the imposition of her sentence. Under OCGA § 5-6-35 (j), this Court will grant a timely discretionary application if the lower court’s order is subject to direct appeal. Accordingly, this application is hereby GRANTED. If she has not already done so, Flowers should file a notice of appeal in the superior court within ten days of the date of this order, pursuant to OCGA § 5-6-35 (g). If she is unable to file a notice of appeal within that time period, Flowers shall file a notice of appeal in the superior court no later than ten days after the expiration of the Supreme Court’s Second Order Extending Declaration of Statewide Judicial Emergency (May 11, 2020). 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,____________________ 05/26/2020 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.