Phillip v. State
313 Ga. App. 302
Ga. Ct. App.2011Background
- Phillip pleaded guilty to 14 counts of dogfighting and 2 counts of aggravated cruelty to animals in September 2009, resulting in a 17-year sentence with 10 to serve, with the final judgment stating concurrent sentences across counts.
- In July 2010 Phillip moved to correct a void sentence, arguing the 17-year total exceeded the statutory maximum of five years per count, given the concurrent disposition.
- The trial court denied the motion, ruling it was untimely and outside the term of court, thus lacking jurisdiction to vacate the sentence.
- Phillip argued the sentence was illegal and void, and that a void sentence cannot be validated by waiver or acquiescence.
- The appellate court held the sentence is void because the maximum for each count is five years, and the record shows the court intended concurrent sentences but the total exceeds the statutory maximum.
- The court reversed the judgment, vacated Phillip’s sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 17-year sentence void for exceeding per-count maximums? | Phillip argues per-count maximum is five years, making 17 years void. | State concedes the disposition sheet was not correctly reflecting intent but does not oppose remand. | Yes, void; sentence vacated and remanded. |
| Can a void sentence be corrected despite timing or jurisdictional concerns? | Phillip contends void sentence may be corrected; timing should not bar relief. | State argues jurisdictional timeliness, but acknowledges voidness affects validity. | Yes; a void sentence may be corrected and resentenced. |
| What is the proper remedy when a sentence is void? | Phillip seeks vacation and resentencing within legal limits. | State does not oppose remand to clarify sentence for lawful resentencing. | Remand for resentencing with proper per-count limits. |
Key Cases Cited
- Crumbley v. State, 261 Ga. 610 (1991) (void-sentence rule; court may resentence when sentence is void)
- Zipperer v. State, 299 Ga. App. 792 (2009) (void sentence may be considered despite lack of trial court objection)
- Bass v. State, 289 Ga. 101 (2011) (per-count maximums; unlawful composite sentence)