Colson v. State
712 S.E.2d 520
Ga. Ct. App.2011Background
- Colson was indicted for escape by a Wilcox County grand jury and pled guilty on December 14, 1998, receiving a ten-year sentence with five to be served concurrently with other sentences and five consecutive to any such sentence.
- In 2003 Colson moved to modify the sentence, arguing the five-year consecutive portion was void; the motion was denied for lack of jurisdiction.
- In 2010 Colson filed another motion to vacate/correct a void sentence seeking a declaration that his sentence should run concurrently with his prior 1998 conviction.
- The trial court dismissed the motion as a motion to vacate a void judgment, citing Harper v. State, but Harper acknowledges void sentences may be attacked at any time.
- The court held Colson’s sentence was not void and could not be modified beyond OCGA § 17-10-1(f) since it fell within the statutory range and was not a void sentence.
- The court explained OCGA § 17-10-10 and Amerson v. Zant to support that the sentence could be validly set as both concurrent and consecutive, and thus not void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Colson's sentence void and subject to post-appeal modification? | Colson argues the five-year consecutive term is void. | The State argues the sentence is within the statutory range and not void. | Not void; within statutory range; not modifiable post-appeal beyond OCGA § 17-10-1(f). |
| Does the combination of concurrent and consecutive components render the sentence void? | OCGA § 17-10-10 prohibits mixing concurrent and consecutive terms in a single sentence. | OCGA § 17-10-10 can apply to separate offenses; it does not limit contemporaneous discretion to structure a new sentence after prior ones. | Not void; statute allows a sentence with both concurrent and consecutive components. |
Key Cases Cited
- Hughes v. State, 273 Ga. App. 705 (2005) (voidness assessment when sentence within statutory range; post-appeal modification limited)
- Williams v. State, 271 Ga. 686 (1999) (void sentence may be attacked; limitations after expiration of term)
- Amerson v. Zant, 243 Ga. 509 (1979) (interpretation of concurrent/consecutive sentencing discretion)
- Harper v. State, 286 Ga. 216 (2009) (void sentence may be attacked; contemporaneous ruling on post-judgment relief)
- Anderson v. State, 251 Ga. App. 785 (2001) (jurisdiction to modify after term expiration; voidness prerequisite)