Michael Brian Rochester v. State

Court of Appeals of the State of Georgia

ATLANTA,____________________ January 04, 2021

The Court of Appeals hereby passes the following order: A21D0156. MICHAEL BRIAN ROCHESTER v. THE STATE.

Michael Brian Rochester pleaded guilty to several offenses, including trafficking in methamphetamine, and on October 16, 2019, the trial court sentenced him to a total of 30 years. On November 16, 2020, Rochester filed a motion to modify his sentence, which the trial court denied. Rochester filed an application for discretionary appeal from this ruling. The State has filed a motion to dismiss. 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 (748 SE2d 446) (2013); Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). In its motion to dismiss, the State argues that Rochester’s motion was not filed within one year of its imposition. As recognized by the trial court, however, on March 14, 2020, the Georgia Supreme Court entered an “Order Declaring Statewide Judicial Emergency,” which tolled filing deadlines. The Order was extended on April 6, May 11, and June 12, 2020, and was extended in part on July 10, 2020.1 These tolling orders served to suspend the running of statutory deadlines. As of March 14, 2020, 150 days had elapsed since Rochester had been sentenced. The deadlines resumed running on July 14, 2020, and Rochester filed his motion 125 days later. Accordingly, his motion to modify was timely.

1 The orders are available at www.gasupreme.us.

The denial of a timely motion to reduce or modify sentence under OCGA § 17- 10-1 (f) is subject to direct appeal. See, e. g., 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). 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 he has not already done so, Rochester should file a notice of appeal in the superior court within ten days of the date of this order. 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. The State’s motion to dismiss is hereby DENIED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 01/04/2021 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.