Collins v. State

• Decision Date: 14 October 2016
• Docket Number: A16A1269
• Parties: Collins v. The State.
• Court: Georgia Court of Appeals

338 Ga.App. 886

792 S.E.2d 134

Collins

v.The State.

A16A1269

Court of Appeals of Georgia.

October 14, 2016

John R. Monroe, Atlanta, for Appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham Lawson, Dist. Atty., for Appellee.

Andrews, Presiding Judge.

More than 17 years after completing a sentence of probation under the First Offender Act,¹ Timothy Curtis Collins filed a "Motion for Discharge and Exoneration" challenging a 1998 order of the Superior Court of Clayton County which found that Collins' performance of his sentence of probation was "unsatisfactory." The trial court denied Collins' motion, and he appeals. Because we construe Collins' motion as one to correct a void sentence, and because we further conclude that the trial court's 1998 sentencing order was void, we reverse and remand this case for entry of an order of exoneration and discharge consistent with the First Offender Act.

On February 7, 1995, Collins entered a negotiated plea of guilty to one count of theft by taking and one count of theft by receiving stolen property.² The Superior Court of Clayton County sentenced Collins to three years to be served on probation under the provisions of the First Offender Act.³ On Friday, February 6, 1998, a Clayton County probation officer completed a "Petition Seeking Adjudication of Unsatisfactory Performance Under First Offender Sentence." The petition alleged that Collins failed to fulfill the requirements of first offender probation in view of Collins' three traffic violations committed during the term of probation. The petition did not seek an adjudication of guilt or revocation of Collins' probation. See OCGA § 42–8–38 (1998) (revocation of probation); OCGA § 42–8–60 (b) (1998). Of note, the record does not contain any evidence that the petition was filed with the clerk of court or the trial judge or that the petition was served upon Collins or his counsel.⁴ On Monday, February 9, 1998, the trial court executed an order granting the State's petition, concluding that Collins' performance "under the First Offender sentence is found to be unsatisfactory." As a result, the trial court found that Collins "is not entitled to discharge and exoneration as provided in Sec. 42–8–62...." There is no indication in the record that the trial court conducted a hearing on the State's petition. The trial court filed its order on February 11, 1998.

Some 17 years later, on October 5, 2015, Collins filed a "Motion for Discharge and Exoneration" in which he asked the trial court for an order "formalizing [Collins'] exoneration" under the First Offender Act. The trial court concluded that Collins failed to show "any abuse of discretion in the Court's 1998 determination that [Collins] was not entitled to relief under the First Offender Act" and denied his motion. Collins' appeal followed.

1. We are obligated to question our jurisdiction "in any case in which there may be a doubt about the existence of such jurisdiction." Sanders v. State , 280 Ga. 780, 782 (1), 631 S.E.2d 344 (2006). Here, Collins filed a motion in 2015 to challenge a 1998 order denying him exoneration and discharge under the First Offender Act. Collins could have sought an appeal from that order as late as March 13, 1998, but no appeal was filed⁵ and his opportunity to appeal that order expired long ago.⁶ See OCGA § 5–6–38 (a). Accordingly, unless Collins' motion is of a kind which may be brought at any time, and Collins invoked the correct procedure to appeal the order denying his motion, we lack jurisdiction and Collins' appeal must be dismissed.

Collins points to no law which authorizes the specific motion he filed.⁷ See, e.g., State v. Green , 308 Ga.App. 33, 34 (1), 706 S.E.2d 720 (2011) ("[A] motion to vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case."). See also Harper v. State , 286 Ga. 216, 217 (1), 686 S.E.2d 786 (2009). He does not challenge the trial court's judgment of conviction, but essentially asks the trial court to remove a sentencing provision (i.e., the prohibition against exoneration and discharge), which is not authorized under Georgia law.⁸ See Spargo v. State , 332 Ga.App. 410, n. 1, 773 S.E.2d 35 (2015) ("[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same"). As a result, Collins' motion most closely resembles a motion to correct a void sentence. See Davis v. State , 330 Ga.App. 711, 712, 769 S.E.2d 133 (2015) ("there is no magic in mere nomenclature, and pleadings are construed to serve the best interests of the pleader, and are judged by function rather than name.").

A motion to correct a void sentence may be filed at any time. See OCGA § 17–9–4 ; Rooney v. State , 287 Ga. 1, 2 (2), 690 S.E.2d 804 (2010) ; Spargo , 332 Ga.App. at 410, 773 S.E.2d 35. "[T]he only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow." (Citation and punctuation omitted.) Spargo , 332 Ga.App. at 411, 773 S.E.2d 35. "When the sentence imposed falls within the statutory range of punishment, [however,] the sentence is not void [.]" (Citation and punctuation omitted.) Id.

Under the First Offender Act, a person is either exonerated of guilt and stands discharged as a matter of law upon completion of the term of probation (OCGA § 42–8–60 (e)(1) (2016)) or adjudicated guilty in a petition filed prior to the expiration of the sentence (OCGA § 42–8–60 (d) (2016)); the statute does not provide for any other alternative.⁹ Stated differently:

A first offender's guilty plea does not constitute a "conviction" as that term is defined in the Criminal Code of Georgia. Rather, under the first offender statute, until an adjudication of guilt is entered, there is no conviction. The case has, in effect, been suspended during the period of probation until eventually the probation is either revoked or it is discharged; unless it is revoked, there is no conviction .

(Emphasis supplied; footnotes and punctuation omitted.) Cook v. State , 338 Ga. App. 489, 497(4), 790 S.E.2d 283 (2016) citing Davis v. State , 273 Ga. 14, 15, 537 S.E.2d 663 (2000). A punishment which deviates from these limited options is not available and, therefore, it is void. See Spargo , 332 Ga.App. at 411, 773 S.E.2d 35. In this case, Collins' motion attacked a sentence imposed by the trial court that was not permitted. See Shaheed v. State , 274 Ga. 716, 717, 559 S.E.2d 466 (2002) ("When the trial court amended [Collins'] sentence to eliminate first offender status, it effectively imposed an enhanced sentence. ..."). As a result, we construe Collins' motion as a motion to correct a void sentence. See Davis , 330 Ga.App. at 712, 769 S.E.2d 133. Orders on motions to correct a void sentence may be appealed directly, and Collins timely filed a notice of appeal from the trial court's order denying his "Motion for Discharge and Exoneration." See Williams v. State , 271 Ga. 686, 689 (1), 523 S.E.2d 857 (1999) ("the denial of a petition to correct a sentence on the ground that the original sentence was void is appealable as a matter of right"). Accordingly, we have jurisdiction.¹⁰

2. In view of our analysis in Division 1, supra, the State's motion to dismiss Collins' appeal is denied.¹¹ See Williams , 271 Ga. at 689, 523 S.E.2d 857 (1). Compare OCGA § 42–8–64 ; Hawkins v. State , 330 Ga.App. 547, 768 S.E.2d 523 (2015) (appeal from order denying petition to remove listing from sexual offender registry is by discretionary appeal); Mobley , 192 Ga.App. at 719, 386 S.E.2d 384 (appeal from an order of adjudication of guilt and revocation of sentence issued pursuant to First Offender Act is by discretionary appeal).

3. Prior to the expiration of Collins' sentence, the State completed, but the record contains no indication that it filed, a petition "seeking adjudication of unsatisfactory performance." Bearing in mind the two options available under the First Offender Act, there are two primary deficiencies with the State's petition. First, to the extent the petition sought an adjudication of guilt, it was untimely. See OCGA § 42–8–38 (a) (1998); State v. Mills , 268 Ga. 873, 874, 495 S.E.2d 1 (1998) (failure of State to file a petition to revoke defendant's probation during the term of probation precluded State's argument that defendant failed to fulfill the terms of his probation). Compare Jones , 322 Ga.App. 269, 745 S.E.2d 1 ; State v. Boyd , 189 Ga.App. 617, 617–618, 619, 377 S.E.2d 11 (1988) (State filed petition for adjudication of guilt prior to expiration of sentence; "We do not reach the issue of whether a different result would obtain if the state had failed to file its ‘Petition for Adjudication of Guilt and Imposition of Sentence’ prior to the expiration of the period of first offender probation...."). Second, and of particular relevance, Georgia law does not recognize the trial court's sentence denying Collins, exoneration and discharge as sought by the State. See Division 1, supra; Shaheed , 274 Ga. at 717, 559 S.E.2d 466 ; Davis , 273 Ga. at 15, 537 S.E.2d 663 ("[u]nder the first offender statute, until an adjudication of guilt is entered, there is no conviction."); Mills , 268 Ga. at 875, 495 S.E.2d 1 ("Nothing in [the Act] expressly provides that a ‘discharge’ from first-offender probation is not ... automatic, but must be formalized to become effective."). Thus, "if a first-offender probationer is not ‘discharged’ pursuant to OCGA § 42–8–62, it is only because he did not successfully complete his term of probation." Id. "Successful completion" of the term of probation is measured by whether the State timely filed a petition for revocation. See OCGA § 42–8–60 (e), (g) (2016); Mills , 268 Ga. at 875, 495 S.E.2d 1. In this case, it did not. Therefore, we conclude that the trial court's sentence denying Collins, exoneration and discharge is void as...