Wilder v. State, A17A1727
Citation | 806 S.E.2d 200,343 Ga.App. 110 |
Decision Date | 04 October 2017 |
Docket Number | A17A1727 |
Parties | WILDER v. The STATE. |
Court | United States Court of Appeals (Georgia) |
David Edward Clark, for Appellant.
William P. Doupé, District Attorney, Kevin R. Majeska, Assistant District Attorney, for Appellee.
On May 29, 2009, a Lincoln County jury found James Glenn Wilder guilty beyond a reasonable doubt in Case No. 2005–CR–3630 of aggravated child molestation, child molestation, statutory rape, and sexual exploitation of a child (two counts), based on acts he committed in 2003 and 2004. After a series of proceedings, including consideration by the Supreme Court of Georgia, Wilder's convictions were affirmed.1 In August 2013, the case returned to the trial court for resentencing as directed in Wilder's original direct appeal, Wilder v. State, 304 Ga.App. 891, 895–896 (6), 698 S.E.2d 374 (2010). The trial court sentenced Wilder to thirty years, to serve twenty in prison, for aggravated child molestation; five years for child molestation,2 consecutive; five years for statutory rape, concurrent; and five years for each count of sexual exploitation of a child, concurrent. The sentences totaled thirty-five years, to serve twenty-five years in prison.
Wilder filed a motion for new trial after the resentencing.3 The trial court conducted a hearing on February 16, 2017. The parties informed the court that they were in agreement that Wilder was entitled to be resentenced with respect to the child molestation conviction, which was Count 2, on the basis that OCGA § 17–10–6.2, which was enacted in 2006, requires a split sentence of at least the statutory minimum sentence of imprisonment for the offense plus at least one year of probation.4 At the time of the hearing, the applicable statutory range for child molestation was not less than five nor more than twenty years imprisonment. OCGA § 16–6–4 (b) (1) (2017) (). The trial court resentenced Wilder on Count 2 to five years consecutive to Count 1 (aggravated child molestation) plus an additional year on probation, for a total of six years, to serve five, on Count 2. The sentences now total thirty-six years, to serve twenty-five years in prison. Wilder again appeals.
In the current appeal, Wilder contends that, because OCGA § 17–10–6.2 was not enacted until after he committed the offenses in 2003 and 2004, the parties were mistaken in believing that the Code section applies. In this, Wilder is correct.5 It does not necessarily follow, however, that reversal is required.
(Citation and punctuation omitted.) Few v. State, 311 Ga.App. 608, 716 S.E.2d 644 (2011). See also Monroe v. State, 250 Ga. 30, 36 (7), 295 S.E.2d 512 (1982) () (citations omitted). Wilder's present sentence on Count 2 of six years, to serve five, falls within the applicable statutory range of sentencing, that is, according to the provisions of the law existing in 2003 and 2004, for a first offense of child molestation.6 Because the sentence is legally authorized, we will not review it. Moreover, even if the trial court mistakenly believed that it was required, rather than merely authorized, to impose a split sentence on Count 2 of at least five years in prison plus at least one year on probation, any such sentencing error was induced by Wilder and affords no grounds for reversal. See Torres v. State, 272 Ga. 389, 392 (7), 529 S.E.2d 883 (2000) (); Gorman v. State, 318 Ga.App. 535, 540 (4), 734 S.E.2d 263 (2012) () (punctuation and citation omitted).
Judgment affirmed.
1 See Wilder v. State, 304 Ga.App. 891, 698 S.E.2d 374 (2010) ; Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011) ; Wilder v. State, 320 Ga.App. 497, 740 S.E.2d 241 (2013).
2 An additional count of child molestation merged with the greater offense.
3 See Wilder v. State, Case No. A16A1288, decided September 8, 2016 (unpublished decision reversing the denial of...
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