Kyle Richard Bishop III v. State
A17A1769
Ga. Ct. App.Jul 4, 2017Background
- Kyle Richard Bishop III was convicted by a jury in October 2000 of child molestation, two counts of aggravated child molestation, and aggravated sexual battery; convictions were previously affirmed on direct appeal.
- In October 2015 Bishop filed a motion to vacate a void sentence in the trial court, arguing sentencing errors.
- The trial court denied the motion; Bishop appealed the denial to the Court of Appeals of Georgia.
- Bishop principally argued the trial court failed to follow OCGA § 17-10-6.2(b) at sentencing.
- He also argued his sentences were unduly harsh and that certain offenses should have merged for sentencing.
- The trial court had imposed lengthy consecutive and partially concurrent prison terms (see clerk’s note for exact lengths).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing violated OCGA § 17-10-6.2(b) | Bishop: trial court failed to follow § 17-10-6.2(b) | State: statute was not in effect when offenses occurred, so it does not apply | Court: § 17-10-6.2 enacted in 2006 and does not apply retroactively; claim not colorable |
| Whether sentence is void because penalties exceed lawful maximum | Bishop: implied claim that sentencing procedure made punishment improper | State: Bishop does not allege sentence exceeded statutory maximums | Court: A sentence is void only if it imposes unauthorized punishment; no such showing here |
| Whether merger of offenses creates a void sentence | Bishop: offenses should have merged for sentencing | State: merger argument does not make a sentence legally void | Court: Merger contentions do not constitute a valid void-sentence claim |
| Whether denial of motion to vacate a void sentence is appealable | Bishop: sought direct appeal from denial | State: appeal permitted only if colorable void claim exists | Court: No colorable void claim shown; appeal dismissed |
Key Cases Cited
- Harper v. State, 286 Ga. 216 (direct appeal permitted only for colorable void-sentence claim)
- Burg v. State, 297 Ga. App. 118 (same principle on appealability)
- Crumbley v. State, 261 Ga. 610 (sentence is void only if law does not authorize the punishment)
- Von Thomas v. State, 293 Ga. 569 (void-sentence motions limited to sentences exceeding authorized punishment)
- Richardson v. State, 334 Ga. App. 344 (statute OCGA § 17-10-6.2 not applied retroactively)
- Williams v. State, 287 Ga. 192 (merger argument does not constitute a void-sentence claim)
- Bishop v. State, 252 Ga. App. 211 (original appeal affirming convictions)