Bеnny Kimbrough appeals the trial court’s order denying his 2015 motion to vacate as voidhis sentence of life in prison without the possibility of parole, which was imposed under OCGA § 17-10-7 (b) for a murder he cоmmitted in 2004 after being convicted of kidnapping in Florida in 1994. We affirm.
1. On February 24, 2005, a Clayton County grand jury indicted Kimbrough for malice murder and other crimes in connection with the strangling death ofRamatoulieDembain July 2004. On February 1, 2006, the State filed a notice to have Kimbrough sentenced as a recidivist under OCGA § 17-10-7. At a trial from February 13 to 20, 2006, the jury found Kimbrough guilty on all counts, and on March 7, 2006, he was sentenced to serve life in prison without the possibility of parole for the murder pursuant to OCGA § 17-10-7 (b) due to his prior conviction in Florida for kidnapping.
Mоre than eight years later, in August 2015, Kimbrough filed a motion to correct void sentence, arguing that his sentence of life without parole for murder was void under the sentencing scheme in effect at the time of Demba’s murder. Kimbrough claimed that Georgia law in 2004 did not authorize a sentence of life without parole for capital felonies like murder and, alternatively, that the State’s filing of a notice of intent to seek the death penalty was a prerequisite
2. Kimbrough first contends that his sentence of life without parole is void under Funderburk v. State,
Kimbrough, however, was sentenced as a recidivist under OCGA § 17-10-7 (b), addressing second-time offenders for “serious violent felon[ies],” not OCGA § 17-10-7 (c) like Funderburk. When Kimbrough murdered Demba in July 2004, OCGA § 17-10-7 (b) authorized a sentence of life without parole for “a serious violent felony” like murder if the defendant previously had been convicted in Georgia of a “serious violent felony” or had “been convicted under the laws of any other state or of the United States of a crime which if committed in this state would bе a serious violent felony.”
Although a sentence of life imprisonment without possibility of parole may be imposed for murder, either as a recidivist sentence under OCGA § 17-10-7 (b) (2), which requires that the defendant be previously convicted of a serious violent felony (see OCGA § 17-10-6.1 (a)), or as an alternative sentence when the death penalty is sought (see [former] OCGA § 17-10-31.1), neither of those circumstances is present in this case.
Funderburk,
3. Kimbrough also contends that, even assuming OCGA § 17-10-7 (b) authorized his sentence of life without parole for murder, his sentence is still void, pointing to opinions of this Court and the Court of Appeals that included some broad statements suggesting that a sentence of life without parole was available for murders committed before April 2 9, 2009, only if the State had sought the death penalty.
We conclude from a consideration of the Aсt [Ga. L. 1993, p. 1654] as a whole that the Legislature intended the sentence of life without parole be considered and imposed only when seeking the death penalty. This conclusion is*519 further reinfоrced by Section 9 of the Act, which expressly provides that “[n]o person shall be sentenced to life without parole unless such person could have received the death pеnalty under the laws of this state. . . The unavoidable result of the legislative enactment is to bar the State from seeking life without parole unless the State has filed a notice of intent to seеk the death penalty
Id. at 326. In Johnson v. State,
Johnson contends the trial court erred by sentencing him to serve a life sentence without parole because the Supreme Court of Georgia held in [Ingram\ that a life sentence without parole was authorized only in cases in which the State first sought the death penalty. We must agree.
Id. at 346 (6). In Williams v. State,
Prior to April 29, 2009, a person who was convicted of murder could either be sentenced to death or life in prison with the possibility of parole. Life sentences without the possibility of parole were only imposed in those cases in which the State sought thе death penalty.
Id. at 20 (1). And in Moore v. State,
It is clear from the language of [Ga. L. 1993, p. 1654] that in 2001 the State could seek a sentence of life without the possibility of parole only in those cases where the Statе could, consistent with state and federal laws, impose a sentence of death.
Id. at 707.
However, in Ortiz v. State,
Finally, in State v. Velazquez,
The clear language of OCGA § 17-10-7 (b) required Kimbrough to be sentenced to life without parole for his conviction of the July 2004 murder in light of his prior kidnapping conviction. Nothing this Court has said in cases not involving recidivist sentencing renders Kimbrough’s sentence erroneous, much less void.
Judgment affirmed.
Notes
Kimbrough’s 2006 sentence also included a consecutive term of ten years in prison for theft by taking a motor vehicle; that part of his sentence is not at issue in this proceeding.
As we have previously noted, in2010the GeneralAssembly amended OCGA § 17-10-7 (c) to remove the exception for capital felonies. See Hyde v. State,
In July 2004, OCGA § 17-10-7 (b) said in relevant part:
(1) As used in this subsection, the term “serious violent felony” means a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.
(2) Any person who has been conviсted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious viоlent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole. . . .
Ga. L. 1994, p. 1959, § 12. The only pertinent amendment since then added “[ejxcept as provided in subsection (e) of Code Section 17-10-6.1” at the start of OCGA § 17-10-7 (b) (2). In July 2004 as now, OCGA § 17-10-6.1 defined the term “serious violent felony” to include malice murder as definedinOCGA § 16-5-1 and kidnapping as defined in OCGA § 16-5-40. See OCGA § 17-10-6.1 (a) (1), (3); Ga. L. 1994, p. 1959, § 11.
As this Court recounted in his direct appeal, Kimbrough broke into the Florida victim’s home at night through a back window, carried her into a bedroom, hit her on the head, and stole personal items as well as her car. See Kimbrough,
In 2009, the General Assembly amended the murder statute, OCGA § 16-5-1, to authorize a sentence of life without parole for all murders committed on or after April 29, 2009. See Ga. L. 2009, p. 223, §§ 1, 11 (a). The 2009 Act explicitly said in § 10 that “[a] person may be sentenced to life without pаrole without the prosecutor seeking the death penalty under the laws of this state.” In 2011, the General Assembly expressly required the codification of § 10 of the 2009Act in the Official Code of GeorgiaAnnotated as OCGA § 17-10-16.1. See Ga.L.2011, p. 752, § 17 (3). See generally Heywood v. State,
We note that in 2014, the General Assembly amended the murder statute again, effective July 1, 2014, to create the offense of murder in the second degree with a sentencing range of 10 to 30 years in prison. See Ga. L. 2014, p. 444, § 1-1.
To the extent that cases like Ingram, Johnson, Williams, and Moore may be read as precluding a life without parole sentence based on the recidivist sentencing statutes, that rеading is disapproved.
Kimbrough also argues that OCGA § 17-10-2 (c) required the trial court to conduct a sentencing hearing before the jury in order to impose a sentence of life without parole . However, when a sentence of life without parole is mandatory under OCGA § 17-10-7, the defendant has no right to a sentencing hearing before a jury under OCGA § 17-10-2 (c). See Shields v. State,