RICHARDSON v. THE STATE
A15A2113
Court of Appeals of Georgia
NOVEMBER 6, 2015
779 SE2d 406
BARNES, Presiding Judge.
include the days that Brown spent away from work meeting with lawyers, the bank, and law enforcement authorities, as well as the days he spent testifying at the criminal proceedings brought against Jackson. And given Brown‘s testimony as to both the amount of time he lost from work and how much that time cost him, in terms of lost wages, a preponderance of the evidence supports the court‘s restitution award as to the 15 days of work Brown missed prior to the restitution hearing.
We further find, however, that the trial court erred in requiring Jackson to compensate Brown for the day he took away from work to appear at the restitution hearing. As noted earlier,
[t]he restitution mechanism is an attempt to avoid the necessity of a separate civil action and to determine the amount of loss caused by the criminal act in the usually earlier criminal proceedings rather than in a second and more protracted civil suit. Consequently, the amount of restitution ordered may not
exceed those damages the victim could recover in a civil action. Taylor v. State, 295 Ga. App. 689, 691 (2) (673 SE2d 7) (2009) (citation and punctuation omitted). We are aware of no law that would permit a civil litigant to recover for the time lost from work as a result of the litigant‘s prosecution of his civil lawsuit. Given this fact, we find that the trial court erred in awarding Brown the equivalent of a day‘s wages for the time he spent testifying at the restitution hearing. We therefore vacate the trial court‘s order and remand for entry of a new restitution order, consistent with this opinion.
Judgment vacated and case remanded with direction. Andrews, P. J., concurs. Miller, J., concurs in judgment only.
DECIDED NOVEMBER 6, 2015.
Hamilton & Maddox, Tina E. Maddox, for appellant.
S. Hayward Altman, District Attorney, Jessica B. Wilson, Assistant District Attorney,
BARNES, Presiding Judge.
This is the second appearance of this case before this Court. In the first appeal, we affirmed Corey D. Richardson‘s conviction of aggravated child molestation but vacated his sentence and remanded for resentencing. See Richardson v. State, 325 Ga. App. XXVI (Feb. 18, 2014) (unpublished). After the trial court resentenced him, Richardson filed a pro se “Motion to Correct an Illegal and/or Void Sentence,” which the trial court denied, resulting in the present appeal. Richardson contends that the sentence imposed on remand is illegal and/or void as a matter of law because (1) the trial court failed to consider the provisions of
The record reflects that in September 2008, Richardson was indicted for committing an alleged act of aggravated child molestation between January 1, 2001 and January 31, 2003.1 In December 2008, Richardson was tried before a jury, convicted, and sentenced for the indicted crime. The trial court imposed a life sentence, requiring Richardson to serve 25 years in prison with the remainder on probation. The life sentence was predicated on
Richardson appealed his conviction and sentence on several grounds, including that the trial court had sentenced him under the wrong version of the aggravated child molestation statute. In an unpublished opinion, this Court affirmed Richardson‘s conviction, but vacated his sentence and remanded for resentencing under
of the statute in effect when the crime was committed. See Richardson, 325 Ga. App. XXVI.
On remand, the trial court resentenced Richardson to 20 years in prison. Proceeding pro se, Richardson thereafter filed his “Motion to Correct an Illegal and/or Void Sentence.” The trial court denied Richardson‘s motion, and this appeal followed.
The General Assembly has established a specific time frame during which a trial court has jurisdiction to freely modify a criminal sentence. Pursuant to
OCGA § 17-10-1 (f) , a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence.
Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010). See
Richardson filed his motion to correct his sentence within one year of being resentenced, and, therefore, his motion was filed within the statutory period prescribed by
1. In two related enumerations of error, Richardson contends that his 20-year sentence is illegal and void because the trial court failed to take into account the punishment provisions for sexual offenses imposed by
(b)5 and should have exercised its discretion to deviate from the mandatory minimum sentence pursuant to
“A crime must be construed and punished according to the provisions of the law existing at the time of its commission.” (Citation omitted.) Riley v. State, 243 Ga. App. 697, 698 (534 SE2d 437) (2000). See Widner v. State, 280 Ga. 675, 677 (2) (631 SE2d 675) (2006).
2. Richardson also contends that his 20-year sentence for aggravated child molestation is illegal and void because it violates the Eighth Amendment prohibition against cruel and unusual punishment. Relying upon the United States Supreme Court‘s decisions in Roper v. Simmons, 543 U. S. 551 (125 SCt 1183, 161 LE2d 1) (2005); Graham v. Florida, 560 U. S. 48 (130 SCt 2011, 176 LE2d 825) (2010); and Miller v. Alabama, ___ U. S. ___ (132 SCt 2455, 183 LE2d 407) (2012), Richardson contends that his sentence was cruel and unusual because
In Roper, the Supreme Court held that the Eighth Amendment prohibits capital punishment for juvenile offenders. 543 U. S. at 568 (III) (B). In Graham, the Supreme Court held that a sentence of life without the possibility of parole violates the Eighth Amendment when imposed on juvenile offenders who did not commit homicide. 560 U. S. at 82 (III) (D). In Miller, the Supreme Court extended its ruling in Graham and held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 SCt at 2469 (II). The Supreme Court in Miller reasoned that “children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . . . they are less deserving of the most severe punishments.” (Citation and punctuation omitted; emphasis supplied.) Id. at 2464 (II).
The sentence imposed upon Richardson on remand is distinguishable from the sentences imposed in Roper, Graham, and Miller. In those cases, the Supreme Court was concerned with the imposition upon juvenile offenders of the “most severe punishments” available under the law, namely, the death penalty and life imprisonment without the possibility of parole. Richardson, however, was not subject to one of the “most severe punishments” allowed by law, but rather to a sentence of a definite term of years. Richardson‘s constitutional challenge to his sentence predicated on Roper, Graham, and Miller thus is misplaced. See Adams v. State, 288 Ga. 695, 701 (4) (707 SE2d 359) (2011); In the Interest of T. D. J., 325 Ga. App. 786, 789 (2) (a) (755 SE2d 29) (2014); Middleton v. State, 313 Ga. App. 193, 194-195 (721 SE2d 111) (2011).
3. Lastly, Richardson contends that “venue was not proven beyond a reasonable doubt” and that the trial court “did not have personal or subject matter jurisdiction in this case.” But the authority granted to a trial court to correct a sentence pursuant to
Judgment affirmed. Ray and McMillian, JJ., concur.
DECIDED NOVEMBER 6, 2015.
Corey D. Richardson, pro se.
Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Michael L. Bankston, Assistant District Attorneys, for appellee.