Jason Pierce was indicted on September 28, 1999 for the murders of Patrice Lassiter and Monique Brown and the aggravated assault of Shunae Allen, as well as other offenses. The State filed a notice of intent to seek the death penalty, which specified certain statutory aggravating circumstances. In December 2003, Pierce pled guilty to two counts of malice murder, one count of aggravated assault, and one count of possession of a firearm by a convicted felon. The trial court imposed consecutive sentences of life imprisonment *894 without the possibility of parole for the murders and consecutive terms of years for the remaining offenses.
Acting pro se in 2007, Pierce filed a motion for appointment of counsel, a motion to vacate a void and illegal sentence, and a “renewed” motion for appointment of counsel. In January 2008, Pierce filed an “amended” motion for out-of-time appeal, which was denied on February 28, 2008. On January 25, 2010, Pierce filed a motion to set aside the February 2008 order pursuant to
Cambron v. Canal Ins. Co.,
1. Pierce first enumerates the trial court’s failure to appoint counsel to prosecute the motions for out-of-time appeal and to vacate a void and illegal sentence. We address this issue pursuant to OCGA § 5-6-34 (d), although we note that a final decision refusing to appoint post-conviction counsel generally is itself directly appeal-able. Hi
ght v. State,
“An indigent defendant is entitled to representation by counsel only for trial and for the direct appeal from the judgment of conviction and sentence. [Cits.]”
Orr v. State,
2. Pierce contends that the trial court erred in denying the motion to set aside the February 2008 order denying an out-of-time appeal.
Under
Cambron,
when “notice of the entry of an appealable
*895
order is not given, the losing party should file a motion to set aside, and the trial court should grant the motion and re-enter the judgment, whereupon the 30-day appeal period would begin to run again. [Cit.]”
Veasley v. State,
Here, the order denying the motion to set aside made no findings of fact whatsoever.
Downs v. C.D.C. Federal Credit Union,
supra. See also
Grant v. State of Ga.,
Given the foregoing, “we are unable to determine whether the (trial) court’s denial of [the] motion to set aside was proper under Cambronf)” [Cit.] Therefore, the trial court’s order denying [the] motion to set aside and re-enter order is vacated, and “this case is remanded to the trial court with direction that (it) make the necessary findings under Cambrón. If the court finds that [Pierce] received no notice of the entry of (the [February 2008] order), then the motion to set aside must be granted' and [that] (order) re-entered.” [Cit.]
Grant v. State of Ga., supra. See also Brown v. E.I. du Pont de Nemours & Co., supra; Downs v. C.D.C. Federal Credit Union, supra. We also note that we have no jurisdiction at this time to consider the merits of the motion for out-of-time appeal, despite the parties’ arguments with regard thereto in this appeal. See Sea Tow/Sea Spill of Savannah v. Phillips, supra at 615 (3).
3. The trial court’s denial of the motion to vacate a void and illegal sentence is also enumerated as error. Pierce argues that, in *896 sentencing him to life imprisonment without the possibility of parole, the trial court violated former OCGA § 17-10-32.1 by failing to make a specific, express finding of a statutory aggravating circumstance beyond a reasonable doubt.
Prior to its repeal in 2009, OCGA § 17-10-32.1 (b) provided in relevant part that, in cases where notice of intent to seek the death penalty has been given and the defendant enters a plea of guilty, “the judge may sentence the defendant to . . . life without parole only if the judge finds beyond a reasonable doubt the existence of at least one statutory aggravating circumstance as provided in Code Section 17-10-30.” We have previously held that, applying the requisite strict construction of this criminal statute against the State,
it is clear that a defendant who pleads guilty in a death penalty case cannot be sentenced to life without parole unless the judge contemporaneously makes a specific finding of a statutory aggravating circumstance beyond a reasonable doubt. Here, because the court did not specify an aggravating circumstance at the time of sentencing, the statutory requirement was not met. (Emphasis omitted.)
Hughes v. State,
The State argues that a remand pursuant to Hughes would be an exercise in futility now that OCGA § 17-10-32.1 has been repealed and is no longer applicable. However, with one inapplicable exception, the act which repealed the statute provides that “the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act.” Ga. L. 2009, pp. 223, 227, § 9. That act, which became effective on April 29, 2009, further provides that OCGA § 17-10-32.1 “as it existed prior to the effective date of this Act shall apply to all offenses committed on and before such date.” Ga. L. 2009, pp. 223, 227, § 11 (a).
Accordingly, because the crimes were committed in 1999 while OCGA § 17-10-32.1 was in effect and yet “the court imposed . . . sentenced] of life without parole without contemporaneously specifying [any] statutory aggravating circumstance beyond a reasonable doubt, the sentence[s] [are] void and must be vacated.” Hughes v. State, supra. Therefore, the order denying the motion to vacate a void and illegal sentence is reversed with direction that the sentences of life without parole be vacated. “On remand, however, [Pierce] can be resentenced to life without parole if, at the time of resentencing, the judge complies with the requirements of OCGA § 17-10-32.1. [Cits.]” Hughes v. State, supra at 821-822 (2). If the trial court finds the existence of at least one aggravating circumstance as authorized *897 by the provisions of OCGA § 17-10-30 and by our case law construing that statute, then it may determine whether in its discretion to impose a sentence of life imprisonment without parole. See former OCGA § 17-10-32.1 (a).
Judgments affirmed in part, reversed in part and vacated in part and case remanded with direction.