Charles Hunter v. State
A17A0489
| Ga. Ct. App. | Nov 21, 2016Background
- Charles Hunter was convicted in 2002 of two counts of aggravated child molestation and one count of statutory rape; concurrent prison terms were imposed and his direct appeal was previously affirmed.
- In May 2016 Hunter filed a motion to correct an illegal and/or void sentence; the trial court denied the motion on July 26, 2016.
- Hunter filed a notice of appeal on September 21, 2016, 57 days after the trial court order.
- The Court of Appeals reviewed whether it had jurisdiction to hear the appeal from the denial of a motion to correct a purportedly void sentence.
- Hunter asserted four bases for relief: (1) trial court failed to exercise sentencing discretion; (2) improper notice of sentencing provisions; (3) post‑sentencing statutory changes eliminated mandatory minimums; and (4) a later‑enacted statute required a split sentence for statutory rape.
- The court concluded Hunter did not raise a colorable void‑sentence claim and that the appeal was untimely, and therefore dismissed for lack of jurisdiction.
Issues
| Issue | Hunter's Argument | State's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Notice filed Sept 21, 2016 should be allowed | Notice was filed 57 days after order and is untimely | Appeal is untimely; court lacks jurisdiction under OCGA §5-6-38(a) |
| Whether sentence is void for lack of sentencing discretion | Trial court failed to exercise discretion, rendering sentence void | Sentence was within statutory range; no voidness shown | Not void; within statutory range, so motion does not raise a colorable void‑sentence claim |
| Effect of post‑sentencing statutory changes on mandatory minimums | Subsequent statutes removed mandatory minimums, so sentence is illegal/void | Changes do not render earlier, lawful sentence void; sentencing law at time of offense controls | Changes do not apply retroactively; claim does not show sentence is void |
| Application of OCGA §17-10-6.2 (split sentence) | Hunter contends split sentence should have been imposed | Statute was enacted after 2002; not applicable to his sentence | §17-10-6.2 did not exist at sentencing time and therefore does not apply; no voidness shown |
Key Cases Cited
- Hunter v. State, 263 Ga. App. 747 (affirming the underlying convictions and sentences)
- Rowland v. State, 264 Ga. 872 (timely filing of notice of appeal is jurisdictional)
- Harper v. State, 286 Ga. 216 (appeal lies only for colorable void‑sentence claims)
- Burg v. State, 297 Ga. App. 118 (void‑sentence appeal standards)
- von Thomas v. State, 293 Ga. 569 (void sentences are those exceeding statutory authorization)
- Jones v. State, 278 Ga. 669 (sentences within statutory range are not void)
- New v. State, 327 Ga. App. 87 (noncompliance with §17-10-6.2 can render a sentence void when statute applies)
- Roberts v. State, 286 Ga. 532 (petition to vacate or modify a judgment of conviction is not appropriate in a criminal case)
- Searcy v. State, 162 Ga. App. 695 (sentencing law in effect at time of the crime controls)