State v. Jones, No. A03A2320.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtMIKELL.
Citation594 S.E.2d 706,265 Ga. App. 493
Docket NumberNo. A03A2320.
Decision Date10 February 2004
PartiesThe STATE v. JONES.

594 S.E.2d 706
265 Ga.
App. 493

The STATE
v.
JONES

No. A03A2320.

Court of Appeals of Georgia.

February 10, 2004.


J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, Columbus, for Appellant.

William J. Mason, Columbus, for Appellee.

MIKELL, Judge.

After a jury trial, Benjamin R. Jones was convicted of possession of cocaine with intent to distribute and possession of marijuana. The state filed a notice of its intent to seek recidivist punishment pursuant to OCGA §§ 16-13-30, 17-10-2, and 17-10-7. The trial

594 S.E.2d 707
court sentenced Jones to twelve years, with seven to serve and five on probation. The state appeals, arguing that the trial court erred when it probated a portion of Jones's sentence. We agree and remand for resentencing

1. At the outset, we address Jones's argument that this Court lacks jurisdiction to hear this appeal because the state filed its notice of appeal within 30 days of the denial of the appellee's motion for new trial instead of filing a post-conviction motion contesting the alleged improper sentence. The law is clear that the state is authorized to appeal a void sentence,1 and that the state's appeals are governed by the same time limitations as those applied to other appellants in criminal cases.2 In the absence of express statutory authority requiring the state to file a motion to amend an improper sentence as a prerequisite to appealing that sentence, we hold that the state may appeal directly the sentence imposed by the trial court or file a motion to amend the sentence and then directly appeal the denial [265 Ga. App. 494] thereof. In any event, the state has 30 days from judgment or from the denial of the motion to amend to file its notice of appeal. However, should the defendant file a motion for new trial, that motion tolls the time within which the state can directly appeal the sentence. In that case, the state has 30 days from the denial of the motion for new trial to appeal the alleged improper sentence.

2. The conviction in the instant case was Jones's second conviction for possession of cocaine with intent to distribute, OCGA § 16-13-30(b). Subsection (d), the specific recidivist statute for certain drug offenses, provides, in pertinent part:

Upon conviction of a second or subsequent [violation of OCGA § 16-13-30(b)], he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section
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20 practice notes
  • Blackwell v. State, S17A1928
    • United States
    • Supreme Court of Georgia
    • January 29, 2018
    ...that the State appeals.3 See OCGA § 5-7-1 (a) (6) ; State v. Barrow , 332 Ga. App. 353, n. 2, 772 S.E.2d 802 (2015) ; State v. Jones , 265 Ga. App. 493, 493-494 (1), 594 S.E.2d 706 (2004). In construing OCGA § 17-10-7 (a), "we must presume that the General Assembly meant what it said and sa......
  • Hulett v. State, No. S14P0819.
    • United States
    • Supreme Court of Georgia
    • October 20, 2014
    ...Ga. 183, 184(2), 637 S.E.2d 36 (2006) (holding that the State is entitled to directly appeal a “legally void” order); State v. Jones, 265 Ga.App. 493, 493(1), 494(2), 594 S.E.2d 706 (2004) (noting that “[t]he law is clear that the state is authorized to appeal a void sentence,” holding that......
  • Merritt v. State, No. A14A1446.
    • United States
    • United States Court of Appeals (Georgia)
    • November 20, 2014
    ...645 (2001), quoting OCGA § 16–13–30(d) ; see also Johnson v. State, 259 Ga.App. 452, 457(4), 576 S.E.2d 911 (2003) ; State v. Jones, 265 Ga.App. 493, 494(2), 594 S.E.2d 706 (2004) (OCGA § 17–10–7(c) applies to a second offense under OCGA § 16–13–30(b), and the time imposed must be served wi......
  • Langley v. State, S21G0783
    • United States
    • Supreme Court of Georgia
    • February 1, 2022
    ...17-10-1 (a) (1) (A).2 313 Ga. 143 Langley , 358 Ga. App. at 345, 855 S.E.2d 376. The Court of Appeals relied in part on State v. Jones , 265 Ga. App. 493, 594 S.E.2d 706 (2004), which held that the phrase "shall be imprisoned for not less than ten years" in OCGA § 16-13-30 (d), a recidivist......
  • Request a trial to view additional results
20 cases
  • Blackwell v. State, S17A1928
    • United States
    • Supreme Court of Georgia
    • January 29, 2018
    ...that the State appeals.3 See OCGA § 5-7-1 (a) (6) ; State v. Barrow , 332 Ga. App. 353, n. 2, 772 S.E.2d 802 (2015) ; State v. Jones , 265 Ga. App. 493, 493-494 (1), 594 S.E.2d 706 (2004). In construing OCGA § 17-10-7 (a), "we must presume that the General Assembly meant what it said and sa......
  • Hulett v. State, No. S14P0819.
    • United States
    • Supreme Court of Georgia
    • October 20, 2014
    ...Ga. 183, 184(2), 637 S.E.2d 36 (2006) (holding that the State is entitled to directly appeal a “legally void” order); State v. Jones, 265 Ga.App. 493, 493(1), 494(2), 594 S.E.2d 706 (2004) (noting that “[t]he law is clear that the state is authorized to appeal a void sentence,” holding that......
  • Merritt v. State, No. A14A1446.
    • United States
    • United States Court of Appeals (Georgia)
    • November 20, 2014
    ...645 (2001), quoting OCGA § 16–13–30(d) ; see also Johnson v. State, 259 Ga.App. 452, 457(4), 576 S.E.2d 911 (2003) ; State v. Jones, 265 Ga.App. 493, 494(2), 594 S.E.2d 706 (2004) (OCGA § 17–10–7(c) applies to a second offense under OCGA § 16–13–30(b), and the time imposed must be served wi......
  • Langley v. State, S21G0783
    • United States
    • Supreme Court of Georgia
    • February 1, 2022
    ...17-10-1 (a) (1) (A).2 313 Ga. 143 Langley , 358 Ga. App. at 345, 855 S.E.2d 376. The Court of Appeals relied in part on State v. Jones , 265 Ga. App. 493, 594 S.E.2d 706 (2004), which held that the phrase "shall be imprisoned for not less than ten years" in OCGA § 16-13-30 (d), a recidivist......
  • Request a trial to view additional results

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