Darby v

State, 230 Ga. App. 32, 495 S.E.2d 146 (1998). Warrantless searches vs. warrantless arrests. — Trial court erred in denying a probationer’s motion to suppress the evidence seized from the probationer’s apartment as, even though the entry into the apartment for the purpose of effecting an arrest of the probationer was permissible, most of the evidence was seized without a warrant after the probationer was not found in the apartment and had to be excluded under the Fourth Amendment as the search conducted was only permissible insofar as the search involved the observation of items of obvious evidentiary value in plain view during the time and activities required to attempt the probationer’s arrest. The probationer was never placed on notice that the probationer was going to be subjected to warrantless searches, and the state failed to demonstrate any exigent circumstances justifying the warrantless search. Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007). Motion to vacate sentence was untimely filed. — Denial of the defendant’s motion to vacate sentence was affirmed since the motion was untimely filed four years after the trial court received the remittitur of an earlier affirmance of the defendant’s conviction; moreover, the defendant’s sentence resulted from the defendant’s conviction and did not involve the defendant’s status as a probationer in a different county. Esquivel v. State, 266 Ga. App. 715, 598 S.E.2d 24 (2004). As the defendant filed a petition to correct void sentence more than two years after the remittitur of the defendant’s 17-10-1 direct appeal, defendant could only challenge the sentence if it was void, pursuant to O.C.G.A. § 17-10-1(f ). McConnell v. State, 281 Ga. App. 303, 635 S.E.2d 882 (2006). Appeal of a trial court’s denial of a defendant’s motion to correct sentence was dismissed because the motion was filed beyond the time specified in O.C.G.A. § 17-10-1(f ), the sentence was within the applicable penalty range, and the sentence was not void despite the defendant’s claim that the prosecution introduced erroneous and inflammatory information at the sentencing hearing; further, the sentence was not ‘‘enhanced’’ beyond the maximum penalty and Apprendi did not apply. Burg v. State, 297 Ga. App. 118, 676 S.E.2d 465 (2009), cert. denied, No. S09C1217, 2009 Ga. LEXIS 419 (Ga. 2009). Sentencing court lacked jurisdiction over the defendant’s motion to vacate the defendant’s sentence because the motion was filed three years after sentencing and the defendant did not assert a claim that the sentence was void, meaning that it was a sentence that the law did not allow. von Thomas v. State, 293 Ga. 569, 748 S.E.2d 446 (2013). Motions to withdraw guilty plea. — Because the defendant was sentenced during the July 2002 term of court, but the defendant’s motions to withdraw the guilty plea were not filed until May 2, 2003 and June 4, 2003, during the May 2003 term of court, at the time defendant filed the motion to withdraw the plea, the only means available to challenge defendant’s plea was through a petition for writ of habeas corpus. Kuntz v. State, 276 Ga. App. 483, 623 S.E.2d 684 (2005). If defendant pled guilty to charges of murder and armed robbery, but the record did not support a finding that the defendant was advised of all the defendant’s constitutional rights by either the defendant’s attorney or the sentencing court and that the defendant made a knowing and intelligent waiver of those rights, the habeas court erred by denying the defendant’s petition for habeas corpus. Johnson v. Smith, 280 Ga. 235, 626 S.E.2d 470 (2006). Ex post facto inquiry. — To determine if an ex post facto violation resulted from 999 General Consideration (Cont’d) use of the applied law in a probation revocation matter, the law in effect at the time of the probation revocation must be measured against the law in effect at the time of the initial offense, not the law in effect at the time of the act that resulted in probation revocation. Walker v. Brown, 281 Ga. 468, 639 S.E.2d 470 (2007). Cited in Brown v. Ricketts, 233 Ga. 809, 213 S.E.2d 672 (1975); Seagraves v. State, 135 Ga. App. 42, 217 S.E.2d 377 (1975); Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975); Ingram v. State, 137 Ga. App. 412, 224 S.E.2d 527 (1976); Mauldin v. State, 139 Ga. App. 13, 227 S.E.2d 862 (1976); Robinson v. State, 139 Ga. App. 480, 228 S.E.2d 615 (1976); Hardin v. State, 141 Ga. App. 115, 232 S.E.2d 631 (1977); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979); Amerson v. Zant, 243 Ga. 509, 255 S.E.2d 34 (1979); Burns v. State, 153 Ga. App. 529, 265 S.E.2d 859 (1980); Cofer v. Hawthorne, 154 Ga. App. 875, 270 S.E.2d 84 (1980); Ward v. State, 248 Ga. 60, 281 S.E.2d 503 (1981); Howell v. State, 160 Ga. App. 562, 287 S.E.2d 573 (1981); Johns v. State, 160 Ga. App. 535, 287 S.E.2d 617 (1981); State v. Shuman, 161 Ga. App. 304, 287 S.E.2d 757 (1982); Strickland v. State, 165 Ga. App. 197, 300 S.E.2d 537 (1983); State v. Baldwin, 167 Ga. App. 737, 307 S.E.2d 679 (1983); Lowry v. State, 171 Ga. App. 118, 318 S.E.2d 744 (1984); Griffin v. State, 172 Ga. App. 184, 322 S.E.2d 295 (1984); Wallace v. State, 175 Ga. App. 685, 333 S.E.2d 874 (1985); Etchison v. State, 175 Ga. App. 723, 334 S.E.2d 324 (1985); Moreland v. State, 183 Ga. App. 113, 358 S.E.2d 276 (1987); Crumbley v. State, 261 Ga. 610, 409 S.E.2d 517 (1991); Browner v. State, 206 Ga. App. 676, 426 S.E.2d 673 (1992); Brady v. State, 212 Ga. App. 853, 443 S.E.2d 522 (1994); Tuttle v. State, 215 Ga. App. 396, 450 S.E.2d 863 (1994); Murray v. State, 216 Ga. App. 593, 455 S.E.2d 79 (1995); Stone v. State, 218 Ga. App. 350, 461 S.E.2d 548 (1995); Day v. State, 242 Ga. App. 899, 531 S.E.2d 781 (2000); United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir. 2001); State v. Huckeba, 258 Ga. App. 627, 574 S.E.2d 856 (2002); Manders v. Lee, 338 F.3d 1304 (11th Cir. 17-10-1 2003); Walker v. State, 289 Ga. App. 879, 658 S.E.2d 375 (2008); Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010); Shelton v. State, 307 Ga. App. 599, 705 S.E.2d 699 (2011); Stephens v. State, 289 Ga. 758, 716 S.E.2d 154 (2011); McClendon v. State, 318 Ga. App. 676, 734 S.E.2d 505 (2012); Parham v. State, 320 Ga. App. 676, 739 S.E.2d 135 (2013); Myrick v. State, 325 Ga. App. 607, 754 S.E.2d 395 (2014); Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017); State v. Hudson, 303 Ga. 348, 812 S.E.2d 270 (2018). Sentencing Prerogatives of Trial Court Powers of trial judge generally. — O.C.G.A. §§ 17-10-1 and 17-10-8, when read together, provide that the judge fixing sentence shall prescribe a determinate sentence for a specific number of years within the limits set by law, may probate a noncapital felony sentence upon such terms as the judge deems proper, and may impose a fine upon the convicted party not to exceed $10,000 (or the fine fixed by law, whichever is greater). State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981). There was no violation of the defendant’s rights under O.C.G.A. § 17-10-1 since the sentence as finally entered did not vary from that which was orally announced by the trial court and there was no increase. Lester v. State, 190 Ga. App. 59, 378 S.E.2d 364 (1989). O.C.G.A. § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law. Baldwin v. State, 217 Ga. App. 866, 460 S.E.2d 80 (1995). If the sentences imposed are within the statutory limits, the sentences are not unconstitutional. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980). Trial court did not have the power to sentence the defendant who was convicted of armed robbery after the defendant was already convicted of committing other felonies to probation, or to suspend any part of the defendant’s sentence, and because life in prison was the maximum penalty 1000 for armed robbery, the trial court properly sentenced the defendant to life in prison without parole. Thompson v. State, 265 Ga. App. 696, 595 S.E.2d 377 (2004). Requiring wearing bracelet reading ‘‘D.U.I. CONVICT.’’ — Court had authority to impose as a condition of probation the requirement that the defendant wear a fluorescent pink plastic bracelet imprinted with the words ‘‘D.U.I. CONVICT.’’ Such requirement did not impose cruel and unusual punishment or deprive the defendant of equal protection and it was not an impermissibly indeterminate condition. Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793 (1993). Sentence of specific range of years satisfies requirement that sentence be determinate. — In a burglary prosecution, since the judge sentenced the defendant ‘‘during the full term of not less than one year and not more than two years,’’ the verdict was in substantial compliance with this section, and the sentence based thereon was valid. Edwards v. State, 64 Ga. App. 266, 13 S.E.2d 39 (1941). When the jury finds the defendant guilty of voluntary manslaughter and court then sentences defendant to serve not less than seven years, nor more than ten years in the penitentiary, the statutory requirement that the judge prescribe a determinate sentence for a specific number of years is satisfied. Randolph v. State, 75 Ga. App. 253, 43 S.E.2d 101 (1947). Correction of written sentence to conform to oral pronouncement. — Trial court did not err by correcting the court’s written sentence to conform with the court’s oral pronouncement because the trial court was authorized to correct the clerical error appearing in the court’s written sentence as compared to the court’s original oral pronouncement; the trial court, after reviewing the original transcript, determined that the court’s original pronouncement and intent was for the aggravated battery and burglary counts to be served consecutive to each other as well as to the other aggravated battery count. Griggs v. State, 314 Ga. App. 158, 723 S.E.2d 480 (2012). Imposition of life sentence for armed robbery was within the range of punish- 17-10-1 ment prescribed therefor and did not violate the mandate that sentences be for a determinate period. Williams v. State, 214 Ga. App. 421, 447 S.E.2d 714 (1994); Curry v. State, 217 Ga. App. 623, 458 S.E.2d 385 (1995); Echols v. Thomas, 265 Ga. 474, 458 S.E.2d 100 (1995). Imposition of life sentence for aggravated assault and armed robbery was allowable and did not violate the requirement that the defendant be given a determinative sentence for a specific number of years. Curry v. State, 217 Ga. App. 623, 458 S.E.2d 385 (1995). Under the provisions of O.C.G.A. § 17-10-1 as the statute existed prior to the 1993 amendment, it was within the discretion of the trial court to impose concurrent life sentences for rape and aggravated sodomy convictions; a sentence for a specific number of years was not required. Cofield v. State, 216 Ga. App. 623, 455 S.E.2d 342 (1995), overruled by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006). Under the provisions of O.C.G.A. § 17-10-1 as the statute existed prior to the 1993 amendment, it was within the discretion of the trial court to impose a life sentence for armed robbery; a sentence for a specific number of years was not required. Null v. State, 216 Ga. App. 641, 455 S.E.2d 359 (1995). Under the provisions of O.C.G.A. § 17-10-1 as the statute existed prior to the 1993 amendment, it was within the discretion of the trial court to impose a life sentence for rape; a sentence for a specific number of years was not required. Parker v. State, 216 Ga. App. 649, 455 S.E.2d 360 (1995). Trial court correctly sentenced a defendant to serve life without the possibility of parole because the defendant was a four-time recidivist and the maximum sentence for rape was life in prison. Further, the state provided the defendant with notice prior to trial that the state would seek to have the defendant sentenced as a recidivist, pursuant to O.C.G.A. § 17-10-7. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008). 1001 Sentencing Prerogatives of Trial Court (Cont’d) Imposition of consecutive life sentences on two rape convictions was void because the sentence deprived the defendant of the right to receive a determinate sentence since the trial judge was authorized to impose a sentence ‘‘within the minimum and maximum prescribed by law as the punishment for the crime.’’ Day v. State, 216 Ga. App. 29, 453 S.E.2d 73 (1994). Life sentence or determinate sentence. — O.C.G.A. § 16-8-41(b) (punishment for armed robbery), read in conjunction with O.C.G.A. § 17-10-1, authorizes the imposition of a life sentence or a determinate sentence at the discretion of the trial judge, whether or not the offender is a recidivist. Worley v. State, 265 Ga. 251, 454 S.E.2d 461 (1995). Banishment valid if logically related to rehabilitation. — If there is no showing that the sentence of banishment from the county is unreasonable or otherwise fails to bear a logical relationship to the rehabilitative scheme of the sentence pronounced for the defendant’s crime, there is no showing of an abuse of discretion, and the Court of Appeals may refuse to disturb the sentence of the trial court. Wilson v. State, 151 Ga. App. 501, 260 S.E.2d 527 (1979). Guilty plea prevents discharge for null sentence, requires remand. — Plea of guilty by the defendant appearing in the record, the defendant cannot be discharged, although the sentence is a nullity. In such event, the case is remanded to the court below with direction that the applicant be taken before the proper court in order that a legal sentence may be imposed upon the applicant. Heard v. Gill, 204 Ga. 261, 49 S.E.2d 656 (1948). Guilty plea is a consideration in sentencing; a consideration that is not present when one is found guilty by a jury. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980). Guilty plea not a conviction. — Georgia Supreme Court has explained that a first offender’s guilty plea does not constitute a conviction as that term is 17-10-1 defined in the Criminal Code of Georgia. Mays v. State, 345 Ga. App. 562, 814 S.E.2d 418 (2018). Guilty plea not conviction and does not qualify under statute. — Trial court did not err in failing to give the defendant a behavioral-incentive date as required by O.C.G.A. § 17-10-1(a)(1)(B) because although it was undisputed that the defendant had no prior felony convictions, and the trial court imposed only a sentence of probation, the plain language of § 17-10-1(a)(1)(B) provided that the statute only applied when a defendant was convicted of felony offenses and since the defendant was sentenced as a first offender, the defendant was not convicted of any felony offenses. Mays v. State, 345 Ga. App. 562, 814 S.E.2d 418 (2018). Consideration of not guilty plea. — When considering the appropriate sentence, a trial judge may consider the entering of a ‘‘not guilty’’ plea by a defendant as evidence of that defendant’s lack of remorse, but may not assess a harsher penalty merely because the state has exerted unnecessary energy in prosecuting that defendant. Sparks v. State, 176 Ga. App. 8, 335 S.E.2d 298 (1985). Sentence received by one joint defendant is irrelevant in the trial of another. Johnson v. State, 246 Ga. 126, 269 S.E.2d 18 (1980). Criminal statutes must be strictly construed against the state and liberally in favor of human liberty. If a statute increasing a penalty is capable of two constructions, the statute should be construed so as to operate in favor of life and liberty. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979). Former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7) did not compel a maximum sentence in confinement for second offenders, but the trial judge had discretion to probate or suspend this maximum sentence pursuant to former Code 1933, § 27-2502 (see O.C.G.A. § 17-10-1). Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979); Davis v. State, 154 Ga. App. 803, 269 S.E.2d 874 (1980). Power to sentence corporation. — Pursuant to O.C.G.A. § 16-2-22(a), a corporation can be prosecuted for violating the law, and a court may sentence a cor- 1002 poration to serve a term for years (even though such sentence be incapable of enforcement) and may suspend that sentence and impose a fine. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981). Under this section, the judge, not the jury, passed sentence after determination of guilt. Huff v. State, 135 Ga. App. 134, 217 S.E.2d 187 (1975). Judge decides if sentences concurrent or consecutive. — Discretion as to whether the sentences are to be served concurrently or consecutively resides entirely and solely with the trial judge, unaffected and uninfluenced by any recommendation of the jury in such respect, and it is error for the judge to be guided by a jury decision. Huff v. State, 135 Ga. App. 134, 217 S.E.2d 187 (1975). Consecutive sentences affirmed. — Denial of the defendant’s motion attacking the defendant’s consecutive sentences for burglary as void was affirmed as under O.C.G.A. § 17-10-10, sentences were to be served ‘‘concurrently unless otherwise expressly provided therein.’’ Jones v. State, 271 Ga. App. 830, 610 S.E.2d 570 (2005). Nothing in the record affirmatively indicated that a trial court erroneously believed that the court had no discretion under O.C.G.A. § 17-10-1(a)(1) to suspend or probate a defendant’s mandatory consecutive five-year sentence on a conviction for possession of a firearm during the commission of a felony under O.C.G.A. § 16-11-106(b); thus, the sentence was properly imposed consecutively to the defendant’s sentence for trafficking in cocaine under O.C.G.A. § 16-13-31(a)(1). Weems v. State, 295 Ga. App. 680, 673 S.E.2d 50 (2009). It could not be assumed that the trial court relied on the defendant’s prior convictions in sentencing the defendant because although the trial court imposed maximum and consecutive sentences for the defendant’s convictions, the record did not indicate that the trial court relied on the prior convictions in any way, and the trial court had the authority to enter those sentences regardless of any prior convic- 17-10-1 tions pursuant to O.C.G.A. §§ 17-10-1(a)(1) and 17-10-10(a). Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018). Trial court did not err by sentencing the defendant to three consecutive 12-month sentences on probation with the first 12 months to be served on house arrest following the defendant’s guilty plea to the offenses of statutory rape, fornication, and battery because the sentence was within the statutory limits and whether to impose consecutive or concurrent sentences for multiple offenses was within the trial court’s discretion. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012). Any amount of time within statutory limits. — O.C.G.A. § 17-10-1 allows a trial court to sentence a defendant to any amount of time within the limits provided by the legislature. Pendleton v. State, 184 Ga. App. 358, 361 S.E.2d 663, cert. denied, 184 Ga. App. 910, 361 S.E.2d 663 (1987), cert. denied, 484 U.S. 1064, 108 S. Ct. 1025, 98 L. Ed. 2d 989 (1988). Because the defendant’s sentence fell within the statutory range of punishment, the sentence imposed by the trial court was not void and was not subject to post-appeal modification beyond that provided in O.C.G.A. § 17-10-1(f ); moreover, the direct appeal authorized by Williams v. State was limited to that taken from a sentencing court’s ruling on a pleading which asserted the sentence imposed a punishment which the law did not allow. Guice v. State, 282 Ga. App. 747, 639 S.E.2d 636 (2006). Multiple maximums imposable. — Imposition of the maximum punishment of life imprisonment for 24 of the offenses of which the defendant was convicted was not error. Jefferson v. State, 209 Ga. App. 859, 434 S.E.2d 814 (1993). No error in imposing maximum and consecutive sentences. — It could not be assumed that the trial court relied on the defendant’s prior convictions in sentencing the defendant because although the trial court imposed maximum and consecutive sentences for the defendant’s convictions, the record did not indicate that the trial court relied on the prior 1003 Sentencing Prerogatives of Trial Court (Cont’d) convictions in any way, and the trial court had the authority to enter those sentences regardless of any prior convictions pursuant to O.C.G.A. §§ 17-10-1(a)(1) and 17-10-10(a). Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011), overruled on other grounds, Nalls v. State, 815 S.E.2d 38, 2018 Ga. LEXIS 396 (Ga. 2018). Trial court did not err in imposing maximum and consecutive sentences on the second defendant for the burglary and theft by taking convictions as the second defendant’s prior convictions for three or more felonies qualified the second defendant to be sentenced as a recidivist, requiring the second defendant to be sentenced to the maximum time allowed; the sentences were within the statutory ranges; and the trial court had the authority to require that the sentences run consecutively. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019). Trial judge may properly impose greater sentence upon the defendant after hearing evidence at trial than the judge might have imposed in conjunction with a guilty plea. Arnold v. State, 163 Ga. App. 94, 292 S.E.2d 891 (1982). Resentencing after term of court at which original sentence imposed. — Since the motion for new sentencing was filed and heard after the term of court at which the original sentence was imposed, the trial court had no jurisdiction to resentence the defendant and the new sentence imposed was void and unenforceable. State v. Hinson, 164 Ga. App. 66, 296 S.E.2d 386 (1982). Judge may recall defendant for resentencing after error. — There is authority, when there is an error or irregularity in failing to inform the defendant of conditions which the defendant’s sentence to confinement imposed, for correction by the court by recalling the defendant and sentencing the defendant as provided by law. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973). Defendant’s sentence void due to error in sentencing. — Since the defen- 17-10-1 dant was convicted of prior felonies and the offense of rape was also a felony under O.C.G.A. § 16-6-1(b), the trial court’s imposition of a suspended sentence under O.C.G.A. § 17-10-1 was void because the trial court was required to give the defendant a life sentence under O.C.G.A. § 17-10-7(a). State v. Scott, 265 Ga. App. 387, 593 S.E.2d 923 (2004). Once a defendant begins to serve a sentence, the sentence may not be increased. Higdon v. Cooper, 247 Ga. 746, 279 S.E.2d 451 (1981). Judge may not impose sentence consecutive to intervening sentence upon revoking probation. — Court revoking probation because of a subsequent conviction may not make the revoked sentence consecutive to an intervening sentence. England v. Newton, 238 Ga. 534, 233 S.E.2d 787 (1977). Power to probate sentence generally. — Wording of this section was plain — a judge can probate a sentence in any case involving a felony except when the punishment is life imprisonment or death. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979). Trial court is granted the power and authority under O.C.G.A. § 17-10-1 to probate a sentence under such rules and regulations as the court deems proper, and to revoke that probation during the term of court at which the sentence is imposed. Garland v. State, 160 Ga. App. 97, 286 S.E.2d 330 (1981). Probation and suspended sentences traditional rehabilitative measures. — Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in this state as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974). Trial court, pursuant to O.C.G.A. § 17-10-1(a)(1), has authority to suspend or probate all or any part of the entire sentence. Kaylor v. State, 312 Ga. App. 633, 719 S.E.2d 530 (2011). Provision for probation may not be added at subsequent term. — Language of former Code 1933, § 27-2702 (see O.C.G.A. § 42-8-34) seemed to refer to 1004 probation as a part of the original sentence, and the provision for a hearing must, considering the language as a whole, refer to a hearing on the type of sentence to be imposed, and not authorize the court, at a subsequent term, to add to the sentence a provision for probation when the sentence made no provision relating thereto in the first instance. Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 707 (1957). Convict sentenced to indefinite prison confinement cannot apply for probation at next term. — Trial court has no power to amend and modify a sentence in a criminal case after the term during which the sentence was imposed. Accordingly, if the defendant has been sentenced to an indeterminate term in the penitentiary without any provision for probation, it is proper for the court to refuse to entertain a motion made at a subsequent term that the sentence be modified so as to allow the defendant to serve the sentence on probation. Phillips v. State, 95 Ga. App. 277, 97 S.E.2d 707 (1957). Probated portion of sentence may be revoked or modified at any time during term of the probated sentence after hearing and finding of probation violation. Logan v. Lee, 247 Ga. 608, 278 S.E.2d 1 (1981). Probating sentence at later term of court. — Trial court had authority to probate the defendant’s sentence to confinement, even though more than four terms of court had passed since conviction and sentence, since the court did not intend the sentence to be the final sentence and probated the confinement after receiving a post-sentence investigator’s report. State v. Johnson, 183 Ga. App. 236, 358 S.E.2d 840, cert. denied, 183 Ga. App. 907, 358 S.E.2d 840 (1987). Reasonable conditions for probation or suspension usually approved. — In the absence of express authority to the contrary, there is no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974). Good cause shown for extended period of supervised probation. — Trial 17-10-1 court did not err in sentencing the defendant to more than two years’ supervised probation after a jury convicted the defendant of child molestation because the defendant’s sentence to an extended period of supervised probation was pronounced after notice and hearing and for good cause shown as required by O.C.G.A. § 17-10-1(a)(2); the ‘‘good cause shown’’ was to protect children. O’Neal v. State, 304 Ga. App. 548, 696 S.E.2d 490 (2010). Banishment from parts of state as sentence suspension condition. — Banishment of a defendant from specified areas in Georgia, imposed as a condition for suspension of a sentence by a trial court, does not violate the public policy of the state. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974). Condition that defendant have no contact with victim. — Because the defendant’s sentence, including a condition that the defendant have no contact with the defendant’s stepdaughter whom the defendant had molested and their son, born as a result of the molestation, O.C.G.A. § 42-8-35, was not indeterminate and was not illegal, the defendant’s motion to modify the sentence under O.C.G.A. § 17-10-1 was barred by a waiver in the defendant’s plea agreement. Jones v. State, 348 Ga. App. 653, 824 S.E.2d 575 (2019). Court-ordered restitution may be imposed as a reasonable condition of probation. Morrison v. State, 181 Ga. App. 440, 352 S.E.2d 622 (1987). Suspension of defendant’s hunting and fishing privileges during the probation period imposed upon conviction of a violation of O.C.G.A. § 27-3-9, unlawful enticement of game, was not an abuse of discretion. Quintrell v. State, 231 Ga. App. 268, 499 S.E.2d 117 (1998). Judge may suspend or probate sentence, but not both. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980). Since probation could defeat purpose of conditional suspension. — If a sentence could be simultaneously probated and suspended, an underlying purpose of the conditional suspension would be defeated. Jones v. State, 154 Ga. App. 581, 269 S.E.2d 77 (1980). Condition for suspension that defendant obey all laws (state, federal, 1005 Sentencing Prerogatives of Trial Court (Cont’d) and municipal) is not so vague, indefinite, ambiguous, and uncertain as to be unenforceable. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973) (decided under former Code 1933, § 27-2502). Suspended sentence, once served, cannot exceed maximum which could have been imposed. — Once service of a suspended sentence begins, either by incarceration or probation, it cannot exceed the maximum sentence of confinement which could have been imposed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978). First offender treatment. — Sentence of the defendant based on first offender treatment to five years’ probation conditioned upon successive periods of confinement in a detention center, a diversion center, and in the defendant’s house under intensive supervision was authorized and such does not constitute incarceration, which refers to continuous and uninterrupted custody in a jail or penitentiary. Penaherrera v. State, 211 Ga. App. 162, 438 S.E.2d 661 (1993). Trial court did not err by sentencing the defendant to both confinement and probation in violation of the First Offender Act, under O.C.G.A. § 42-8-60(a), as the statute did not mandate a sentence of either confinement or probation, and the defendant’s probation was not conditioned upon the defendant spending some specified time incarcerated; O.C.G.A. § 17-10-1(a)(1) granted to the sentencing judge the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. Johanson v. State, 260 Ga. App. 181, 581 S.E.2d 564 (2003). Trial court did not err in denying the defendant’s motions seeking to correct the defendant’s sentence to consecutive 15-year terms for two convictions of armed robbery as: (1) the trial court’s statement that ‘‘it would probably normally be my inclination to let you hold two life sentences’’ did not indicate that the trial court had adopted an inflexible and impermissible sentencing formula or that 17-10-1 the trial court had a policy of refusing to consider first offender treatment for certain crimes; and (2) the defendant did not request that the trial court consider sentencing the defendant as a first offender. Green v. State, 265 Ga. App. 126, 592 S.E.2d 901 (2004). After the defendant was found guilty of arson and sentenced, the sentence could not be modified pursuant to O.C.G.A. § 17-10-1(f ) to grant the defendant first offender treatment because the plain language of the first offender statute, O.C.G.A. § 42-8-60 et seq., specifically prohibited such a modification after sentencing. Burchette v. State, 274 Ga. App. 873, 619 S.E.2d 323 (2005). Trial court may grant probation of sentence of second offender. — Although O.C.G.A. § 17-10-7 mandates that a second offender must be sentenced to the maximum punishment for the offense of which convicted, there is no limitation on the trial court’s authority under O.C.G.A. § 17-10-1 to grant probation of such a sentence. Jackson v. State, 158 Ga. App. 530, 281 S.E.2d 252 (1981); Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983). Fourth-offender recidivists. — There is no limitation on the trial court’s authority under O.C.G.A. § 17-10-1 to grant probation of sentence to a fourth-offender recidivist who under O.C.G.A. § 17-10-7 is not eligible for parole until the maximum sentence has been served since probation is not parole. Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983). Remand to consider probating portion of mandatory sentence. — Since the trial court did not exercise the court’s discretion to consider probating appellant’s sentence for theft by taking, the sentence for that offense was reversed and remanded so the trial court could determine whether any portion of the appellant’s mandatory sentence should be probated. Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983). Consecutive sentences for multiple offenses authorized. — Consecutive sentences for defendant indicted and convicted of two counts of forgery in the first degree and one count of financial transac- 1006 tion card theft was not error. Harris v. State, 166 Ga. App. 202, 303 S.E.2d 534 (1983). Sentence indeterminate when controlled by federal authorities. — Since the defendant’s state prison sentence was concurrent with, and not to be longer than, a federal prison sentence, it was an indeterminate sentence in violation of O.C.G.A. § 17-10-1(a)(1) as the sentence was variable based on factors entirely within the control of the federal authorities. State v. Hart, 263 Ga. App. 8, 587 S.E.2d 164 (2003). Defendant may both appeal and make motion to modify conviction. — There is nothing to prevent a defendant from both appealing and making a motion to modify the conviction. Porterfield v. State, 139 Ga. App. 553, 228 S.E.2d 722 (1976). Appellate court may not modify legal sentence. — Appellate court is not empowered to modify a sentence which is within the statutory limits and lawfully imposed. Thomas v. State, 139 Ga. App. 364, 228 S.E.2d 386 (1976). If appellate court affirms, trial judge cannot alter sentence. — When the judgment of the trial court is appealed, and thereafter affirmed by an appellate court, the trial court is without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the sentence formerly imposed. Smith v. State, 146 Ga. App. 727, 247 S.E.2d 503 (1978). Stricter sentence after retrial constitutional. — It is not a denial of equal protection of law guaranteed by U.S. Const., amend. 14 to impose a harsher sentence upon a defendant following a successful appeal and award of a new trial. Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412 (1967) (decided under former Code 1933, § 27-2502). Sentence after new trial must not be vindictive. — Vindictiveness against a defendant for having successfully attacked the defendant’s first conviction must play no part in the sentence the defendant receives after a new trial. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980). 17-10-1 Record must state reasons for harsher penalty upon resentencing. — Court must include in the record an affirmative statement of the reasons underlying the decision to increase punishment upon resentencing, and those reasons should in fact support the imposition of the harsher penalty. Thompson v. State, 154 Ga. App. 704, 269 S.E.2d 474 (1980). Appeal of lawful sentence should be addressed to sentence review panel. — If the sentence imposed upon the defendant was within the statutory limits prescribed by law, the defendant’s complaint that the defendant’s sentence was excessive should be addressed to the appropriate sentence review panel. Hammond v. State, 157 Ga. App. 647, 278 S.E.2d 188 (1981). Motivation of judge and guilty plea. — Although the judge did not indicate the judge’s reasoning for sentencing the defendant to the maximum penalty for the defendant’s crime, there was no evidence that the judge was motivated to do so merely because the defendant refused to enter a guilty plea, and the sentence was within the minimum and maximum sentences prescribed by law. West v. State, 241 Ga. App. 877, 528 S.E.2d 287 (2000). Court’s authority to modify plea agreement. — When the defendant and the state agreed to a reduced charge of voluntary manslaughter and the state would recommend a 20-year sentence, the trial court did not have the authority, over the state’s objection, to accept a guilty plea to voluntary manslaughter and sentence the defendant to a term of only ten years, with five to be served. State v. Kelley, 298 Ga. 527, 783 S.E.2d 124 (2016). Modification of Sentence When sentence may be amended. — Judgments of a court are within the court’s breast until the end of the term, and the sentence may be amended at any time during the term and before execution has begun. Schamber v. State, 152 Ga. App. 196, 262 S.E.2d 533 (1979). Defendant was sentenced to 27 months in prison to be served concurrently with a federal prison term, but the defendant was scheduled for early release from fed- 1007 Modification of Sentence (Cont’d) eral prison, and the transcript from the sentencing hearing indicated that the defendant was not to serve any time in state court in addition to that served in federal court, thus, the trial court did not err in modifying the sentence to conform to the court’s original intent 22 months after the sentence was imposed; O.C.G.A. § 17-10-1(f ) did not abrogate a court’s power to correct an erroneous recording of a sentence. State v. Hart, 263 Ga. App. 8, 587 S.E.2d 164 (2003). Trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass, but if a sentence is void, the trial court may resentence the defendant at any time; a sentence is void if the court imposes punishment that the law does not allow. Copeland v. State, 264 Ga. App. 905, 592 S.E.2d 540 (2003). Trial court erred in holding that because the term of court in which a defendant’s sentence was imposed had expired, the court lacked jurisdiction to modify the sentence. Under O.C.G.A. § 17-10-1(f ), the trial court had jurisdiction to rule upon the merits of the motion within the 120-day period following the court’s receipt of a remittitur from a prior appeal. Davis v. State, 291 Ga. App. 252, 661 S.E.2d 872 (2008). Trial court erred by denying the defendant’s motion to vacate the defendant’s amended sentence on drug-related charges as the trial court had no jurisdiction to amend the defendant’s sentence since, at the time it was undertaken, over two years had passed since the sentence was originally pronounced; thus, under O.C.G.A. § 17-10-1(f ), there was no jurisdiction to amend the sentence. Hall v. State, 291 Ga. App. 649, 662 S.E.2d 753 (2008). Section restricts authority to modify sentence. — Former Code 1933, § 27-2702 (see O.C.G.A. § 42-8-34), which provides that the court shall not lose jurisdiction over a defendant during the term of a probated sentence but shall have power to change or modify the sentence during the period of time originally described for the probated sentence to run, had been modified by former Code 17-10-1 1933, § 27-2502 (see O.C.G.A. § 17-10-1), which provided that after the term of court at which a sentence is imposed by a judge, the judge shall have no authority to suspend, probate, modify, or change the sentence of the prisoner, except as otherwise provided. Entrekin v. State, 147 Ga. App. 724, 250 S.E.2d 177 (1978). Defendant’s motion to modify sentence was properly denied wherein the defendant asserted that the defendant’s convictions should have merged for sentencing purposes because O.C.G.A. § 17-10-1(f ) was not a proper procedural mechanism for asserting such a claim since the defendant pled guilty. Patterson v. State, 347 Ga. App. 105, 817 S.E.2d 557 (2018). Motion to vacate, void, or correct illegal sentence denied. — Trial court did not err in denying the defendant’s motion to vacate, void, or correct an illegal sentence several years after the defendant’s sentence was imposed because the alleged errors in the defendant’s case clearly went to the validity of the judgment of conviction entered on the defendant’s guilty plea, not the validity of the defendant’s sentence; Georgia law authorized the concurrent sentences of 10 years in prison for false imprisonment, and 20 years, with 13 years to be served in prison and the remainder on probation, for trafficking of persons for sexual servitude. Jones v. State, 354 Ga. App. 29, 840 S.E.2d 117 (2020). No error in modification of sentence. — Trial court did not err in modifying the appellant’s sentence pursuant to O.C.G.A. § 17-10-1(f ) because the record showed that prior to entering the modified sentence, the trial court provided timely notice and an opportunity to the state for a hearing under § 17-10-1(f ). Cade v. State, 351 Ga. App. 637, 832 S.E.2d 453 (2019). Judge can modify sentence only during term. — Superior court judge cannot modify a sentence after the expiration of the term of court at which the sentence was imposed, unless the sentence imposed was a void sentence, in which case a new and valid sentence can be imposed by the trial judge at any time. Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973). 1008 Motion to reduce sentence filed by the defendant was untimely since the defendant filed the motion after expiration of the term of court in which the defendant’s sentence was entered. Levell v. State, 247 Ga. App. 615, 544 S.E.2d 523 (2001). Judge can modify if sentence void. — If it appears on the face of the record that a valid verdict has been returned, a sentence not in accord with the verdict, though a nullity, may be corrected to conform to the verdict. This may be done after the expiration of the term at which the sentence was imposed. Heard v. Gill, 204 Ga. 261, 49 S.E.2d 656 (1948). Because the trial court was authorized to impose concurrent ten year sentences to serve after the defendant entered guilty pleas to child molestation and aggravated child molestation, the judgment was not void and the court properly denied the defendant’s petition to correct the void judgment. Barber v. State, 240 Ga. App. 56, 522 S.E.2d 238 (1999). Trial court erred in dismissing the defendant’s motion to withdraw a guilty plea as the defendant retained a statutory right to withdrawal under O.C.G.A. § 17-7-93(b) because the sentence imposed as a result of the guilty plea was void and the defendant had a right to withdrawal until a legal sentence was imposed. Kaiser v. State, 285 Ga. App. 63, 646 S.E.2d 84 (2007), cert. denied, No. S07C1275, 2007 Ga. LEXIS 696 (Ga. 2007). Because O.C.G.A. § 16-13-31(f )(1) required a mandatory minimum sentence for trafficking in methamphetamine of ten years and a $200,000 fine, and the sentence imposed by the trial court failed to include the fine, the trial court’s resentencing to add the fine after the defendant began serving the sentence was valid and did not violate the defendant’s double jeopardy rights. The suspended sentence provisions of O.C.G.A. § 17-10-1(a) were inapplicable to the mandatory sentence provisions of § 16-13-31, and there was no indication that the trial court intended to suspend the fine portion. Strickland v. State, 301 Ga. App. 272, 687 S.E.2d 221 (2009). It was not erroneous for the trial court to impose a sentence of 20 years for aggra- 17-10-1 vated battery, O.C.G.A. § 16-5-24, because after the defendant’s kidnapping conviction was voided, the trial court was authorized under O.C.G.A. § 17-10-1 to sentence the defendant to a term of years on the aggravated battery count, which could consist of up to 20 years. Griggs v. State, 314 Ga. App. 158, 723 S.E.2d 480 (2012). Trial court’s sua sponte order setting aside a modification of the defendant’s sentence was proper because under O.C.G.A. § 17-10-1(f ) the modification order itself was void because the trial court lacked jurisdiction to enter that order more than one year after the original sentencing. Gray v. State, 351 Ga. App. 703, 832 S.E.2d 857 (2019). Failure to assert sentence was not allowed by law within required statutory time period. — Defendant’s appeal was dismissed as the time period set forth in O.C.G.A. § 17-10-1(f ) had passed and the defendant did not assert that the sentence was not one that the law allowed, but only took issue with the procedure employed in imposing the sentence or questioned the fairness of the sentence; defendant did not challenge any rulings on whether the sentence was void and was not entitled to a direct appeal. Hughes v. State, 273 Ga. App. 705, 615 S.E.2d 819 (2005). Defendant could not appeal the denial of a motion to correct a void sentence as the motion was filed in 2007, more than 12 years after the defendant’s conviction for armed robbery was affirmed and outside the statutory period in O.C.G.A. § 17-10-1(f ), and the defendant’s sentence of life imprisonment was not void as the sentence was within the range set out in former O.C.G.A. § 16-8-41(b). Brown v. State, 295 Ga. App. 66, 670 S.E.2d 867 (2008). Motion filed five years after sentence not timely. — Trial court did not err by denying the appellant’s motion to modify the sentence for a robbery conviction because the motion was filed more than five years after the appellant filed the motion to withdraw the guilty plea; therefore, the appellant filed the motion to modify outside the statutory period set forth in O.C.G.A. § 17-10-1(f ). Williams v. 1009 Modification of Sentence (Cont’d) State, 331 Ga. App. 46, 769 S.E.2d 760 (2015). Motion filed 16 years after sentencing not timely. — To the extent the defendant’s motion to modify sought resentencing based on the merger of certain counts in the indictment as well as a change from consecutive to concurrent sentences, the trial court was without jurisdiction to grant such relief and properly denied the motion because the defendant’s motion to modify the sentence was filed over 16 years after the defendant’s guilty plea and sentencing. Rooney v. State, 318 Ga. App. 385, 734 S.E.2d 104 (2012). No authority to modify sentence if sentence not void. — Defendant’s claim that the trial court misapprehended the applicable sentencing ranges before sentencing the defendant did not constitute a claim that the sentence was void and was not a means for a post-appeal, post-O.C.G.A. § 17-10-1(f ) sentence modification; thus, the trial court lacked jurisdiction to modify the defendant’s sentence, the trial court’s ruling on the pleading was not subject to direct appeal, and the appeal was dismissed. Reynolds v. State, 272 Ga. App. 91, 611 S.E.2d 750 (2005). Appellant’s motion for sentence modification, asserting that the sentences imposed for armed robbery and burglary were void because the sentences had been imposed without a presentence hearing having been held, was properly denied; rulings on pleadings asserting erroneous procedure or unfair treatment were not subject to direct appeal because those rulings were not rulings on whether the sentence was void, and inasmuch as the assertions contained in the appellant’s post-appeal seeking sentence modification did not allege the sentences imposed were void (appellant acknowledged that the sentences were within the statutory range), appellant was not entitled to a direct appeal from the trial court’s adverse ruling. Jones v. State, 278 Ga. 669, 604 S.E.2d 483 (2004). Because O.C.G.A. § 16-8-41(b) is not ambiguous in its provision for a maximum 17-10-1 sentence of life imprisonment, and because the defendant’s sentence of life imprisonment fell within the statutory range of punishment, the defendant’s sentence was not void. Hudson v. State, 334 Ga. App. 166, 778 S.E.2d 406 (2015). Inmate’s claim that two prior convictions that caused the inmate to be considered a recidivist under former O.C.G.A. § 17-10-7 and were used to sentence the inmate to life in prison without parole should not have been so used because the inmate had been pardoned, resulting in a void sentence, was properly dismissed because the inmate failed to produce evidence of a pardon. Prince v. State, 299 Ga. 888, 793 S.E.2d 38 (2016). No power to vacate conviction. — Trial court properly held that the court lacked jurisdiction to entertain a defendant’s motion to withdraw a guilty plea because the term of court at which the guilty plea was entered had expired; moreover, authority to modify sentences under O.C.G.A. § 17-10-1(f ) did not include power to vacate conviction on which the sentence was based. Ellison v. State, 283 Ga. 461, 660 S.E.2d 373 (2008). Motion during term extends trial judge’s power to modify. — While a trial judge loses the inherent right to modify a judgment after the term expires, a motion made during the term serves to extend the power to modify. Porterfield v. State, 139 Ga. App. 553, 228 S.E.2d 722 (1976); State v. Bradbury, 167 Ga. App. 390, 306 S.E.2d 346 (1983); Doby v. Evans, 258 Ga. 777, 373 S.E.2d 757 (1988). Motion to set aside sentence not timely. — Regardless of whether O.C.G.A. § 17-10-1(f ) applied to the defendant’s December 2003 motion to set aside the sentence, that motion, filed four-and-one-half years after the sentence was imposed, was far too late; the motion was not filed in the term in which the sentence was entered, within a year of the date upon which the sentence was imposed, nor within 120 days of the trial court’s receipt of a direct appeal remittitur. Reynolds v. State, 272 Ga. App. 91, 611 S.E.2d 750 (2005). Trial court had no authority to reduce defendant’s life sentence to 20 years and the defendant had no cause for 1010 complaint that the trial court vacated the void sentence-reduction order, when the express consideration for the reduction in sentence was the waiver of the defendant’s appeal, and since the defendant pursued and secured an appellate review on the merits, no reversible error occurred, and the defendant must serve the life sentence that is statutorily mandated for the defendant’s crime. Chandler v. State, 204 Ga. App. 512, 419 S.E.2d 751 (1992). Trial court cannot increase sentence originally passed. — While under former Code 1933, § 27-2702 (see O.C.G.A. § 42-8-34) the trial court had jurisdiction to change or modify the terms of the original sentence, the court cannot, under Ga. L. 1966, p. 440 § 1 (see O.C.G.A. § 42-8-38) and former Code 1933, 27-2502 (see O.C.G.A. § 17-10-1), increase the sentence originally passed. Turnipseed v. State, 147 Ga. App. 735, 250 S.E.2d 186 (1978). Oral sentence may not be increased once commenced. — While it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of the person’s sentence, the court is without power to change the sentence by increasing the punishment. This is considered a violation of the prohibition under U.S. Const., amend. 5 against double punishment or jeopardy. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973). Failure of trial court to provide conditions of probation. — Since the imposition of the terms and conditions of probation is a matter for the trial judge pursuant to O.C.G.A. § 17-10-1(a), if no such conditions have been provided by the trial court, the case is not one in which the panel may appropriately reduce a prison sentence by partial conversion of the prison sentence to probation. Warren v. State, 204 Ga. App. 191, 418 S.E.2d 783 (1992). Modification of conditions of probation. — Order modifying the trial court’s prior banishment order imposed as a condition of the defendant’s probation was upheld on appeal as was the denial of the defendant’s motion to withdraw a negoti- 17-10-1 ated plea because: (1) the defendant’s sentence was independent and, thus, not part of the negotiated plea agreement; and (2) the trial court adequately considered that the defendant’s crimes were likely motivated by the relationship the defendant had with the victim, the defendant’s ex-spouse, where the ex-spouse resided and worked, as well as where the ex-spouse’s immediate family lived, by determining that the banishment order was issued to protect those affected, but also served a rehabilitative purpose by removing a temptation by the defendant to re-offend. Hallford v. State, 289 Ga. App. 350, 657 S.E.2d 10 (2008). Trial court did not err in denying the defendant’s motion to vacate the defendant’s sentence because the probation modification did not constitute punishment since the trial court retained jurisdiction to modify or change the probated sentence and changing the no violent contact order to no contact was not punishment but, rather, was for the purpose of protecting the victim. Bell v. State, 323 Ga. App. 751, 748 S.E.2d 114 (2013). Defendant’s appeal was dismissed as defendant failed to raise valid allegation of void sentence. — Defendant’s claim that multiple counts of the controlled substance and communications facility offenses were the same offense did not raise a valid allegation that the sentence was void and the trial court lacked jurisdiction to modify the sentence; therefore, the defendant’s appeal was dismissed; the denial of the defendant’s motion to vacate void counts of the conviction were not subject to direct appeal. Green v. State, 273 Ga. App. 654, 615 S.E.2d 818 (2005). Because the defendant waived an error reciting the wrong date in the indictment on the record and failed to challenge the indictment by filing a timely written demurrer, a challenge to the indictment pursuant to a motion to vacate what the defendant termed a void and illegal conviction and sentence was rejected and an appeal from the denial of that motion was dismissed for lack of jurisdiction. Guice v. State, 282 Ga. App. 747, 639 S.E.2d 636 (2006). Defendant’s appeal of an order denying 1011 Modification of Sentence (Cont’d) a motion to correct a void sentence was dismissed because the motion was well outside the statutory time period during which a court could correct or reduce a sentence pursuant to O.C.G.A. § 17-10-1(f ); because the assertions contained in the defendant’s post-O.C.G.A. § 17-10-1(f ) motion seeking sentence modification did not allege that the sentences imposed were void, the defendant was not entitled to a direct appeal from the trial court’s adverse ruling, and the trial court sentenced the defendant according to the state’s recommendation pursuant to the plea negotiations. Jones v. State, 303 Ga. App. 319, 693 S.E.2d 499 (2010). Because there was no showing that sentence was void, denial of defendant’s motion for modification was not subject to direct appeal. — Because the defendant failed to show that a sentence to two 20-year terms for child molestation was void as vindictive, pursuant to O.C.G.A. § 17-10-1(f ), the denial of the defendant’s motion for modification was not subject to a direct appeal. Frazier v. State, 302 Ga. App. 346, 691 S.E.2d 247 (2010). Resentencing on affirmed conviction if other reversed. — If a defendant was sentenced on two different charges, and one was affirmed on appeal while the other was reversed, the trial court had no authority to resentence the defendant on the conviction which had been affirmed. Dover v. State, 195 Ga. App. 507, 393 S.E.2d 760 (1990). Defendant’s agreement to change in negotiated plea. — Trial court’s sua sponte declaration that a probation condition barring the defendant’s practice of medicine was to persist forever was not a part of the negotiated plea and sentence, and the defendant did not agree to this modification of the sentence; the trial court’s modification to the agreed upon sentence violated O.C.G.A. § 17-10-1(a)(1). Kaiser v. State, 275 Ga. App. 684, 621 S.E.2d 802 (2005). Sentencing court could consider defendant’s illegal alien status. — Trial court did not violate the defendant’s 17-10-1 constitutional rights by considering the defendant’s illegal alien status a relevant factor in formulating an appropriate sentence within the statutory range for burglary under O.C.G.A. § 16-7-1(a); the trial court properly considered that the court could not order the defendant to work as a condition of probation. Trujillo v. State, 304 Ga. App. 849, 698 S.E.2d 350 (2010). Trial court not vindictive in imposing new sentence. — Because the defendant’s final sentence of 60 years to serve was not longer than the original sentence of life followed by additional terms of years, the trial court was not vindictive in imposing the new sentence as the court did. Griggs v. State, 314 Ga. App. 158, 723 S.E.2d 480 (2012). Revocation of Probation or Suspension No retroactive application of statute. — Legislature did not dictate that O.C.G.A. § 17-10-1(a) applies retroactively to limit probation sentences imposed before its effective date (May 8, 1992). Department of Cors. v. Hicks, 209 Ga. App. 165, 433 S.E.2d 64 (1993). Effect of subsection (a) on probation revocation. — O.C.G.A. § 17-10-1(a)(3)(A) deals exclusively with the type of facility or program to which a court may order a defendant whose probation is revoked; the statute does not speak to the length of detention and did not authorize revocation of the balance of the defendant’s probation for the commission of two new violent misdemeanors. Lawrence v. State, 228 Ga. App. 745, 492 S.E.2d 727 (1997). Probation may be revoked for committing subsequent crime. Layson v. Montgomery, 251 Ga. 359, 306 S.E.2d 245 (1983). Warden of a county Department of Corrections was entitled to qualified immunity on a former inmate’s unlawful detention claims; the warden acted within the warden’s discretionary authority when the warden revoked the inmate’s work release for escape and transferred the inmate to full-time incarceration, and the inmate did not show a violation of clearly established law because the inmate made no showing that the inmate was clearly 1012 entitled to be released at the end of a probation revocation sentence. Coons v. Gwinnett Cnty., 657 Fed. Appx. 856 (11th Cir. 2016) (Unpublished). Judge can revoke probated sentence that is to begin in the future. — By reading former Code 1933, §§ 27-2502 and 27-2702 (see O.C.G.A. §§ 17-10-1 and 42-8-34), a trial judge can revoke a probated sentence that was to begin at a future date. Parrish v. Ault, 237 Ga. 401, 228 S.E.2d 808 (1976); Roberts v. State, 148 Ga. App. 708, 252 S.E.2d 209 (1979). Court may revoke probation after minimum period served. — There is no merit in the contention that a court, or a judge thereof, loses jurisdiction of the defendant’s case after the defendant has served a minimum sentence since a probated sentence is served under the supervision of the judge imposing the probation and the judge may after a hearing revoke the probation at any time during the maximum period covered thereby if the defendant violates any of the rules and regulations upon which the probation was granted. Balkom v. Johnson, 211 Ga. 314, 85 S.E.2d 762 (1955). Habeas court violated separation of powers by revoking sentence while peititoner in custody of parole board. — Habeas court erred by revoking the petitioner’s remaining portion of the original sentence while the petitioner was in the legal custody of the Georgia Board of Pardons and Paroles as such action was in violation of the separation of powers provision of Ga. Const. 1983, Art. I, Sec. II, Para. III. Hayward v. Danforth, 299 Ga. 261, 787 S.E.2d 709 (2016). Revoke suspension and require rest of sentence in confinement. — Suspended sentence is perhaps undefinable, but the court may provide rules and regulations in connection therewith and may, on violation of such rules and after notice and opportunity to be heard, during the time such sentence runs in accordance with its own terms, revoke the suspension and require that the remainder be served within a penal institution. Cross v. State, 128 Ga. App. 744, 197 S.E.2d 853 (1973). Judge may revoke suspension or probation only if rules or regulations violated. — Judge only has authority to 17-10-1 revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973). Revocation violates due process if no conditions imposed. — To deprive a defendant of liberty upon the theory that the defendant violated rules and regulations prescribed in the defendant’s sentence, when no rules, regulations, conditions, limitations, or restrictions were imposed by such sentence, would deprive the defendant of ‘‘due process of law.’’ Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973). Defendant discharged if unaware of conditions set only in later order. — If a condition in the sentence for obedience of laws is reflected only in a later written order, knowledge of such condition not being imputable to the defendant, the effect of such a sentence is an unconditional discharge. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973). Proof required to revoke suspension. — Evidence required to revoke a suspension is only some evidence that the defendant has violated the conditions of the probation which satisfies the trial court hearing the evidence in the exercise of a very wide discretion. It is not necessary to show that the defendant has been convicted of the act constituting the violation of the probation. Hinton v. State, 127 Ga. App. 853, 195 S.E.2d 472 (1973). Revocation of suspended sentence not criminal proceeding. — Petition by county officials to revoke a bankruptcy debtor’s suspended sentence to coerce payment of child support was not criminal in character and, thus, was not excepted from automatic stay as a continuation of a criminal proceeding under the bankruptcy law. Rollins v. Campbell, 200 Bankr. 427 (Bankr. N.D. Ga. 1996). Revocation of multiple probated sentences based on one probation violation valid. — If a probated future consecutive sentence is imposed by the same judge who imposed prior probated sentences, and the conditions of probation for all the sentences are essentially the same, the trial court, upon a violation thereof, is empowered to revoke the defen- 1013 Revocation of Probation or Suspension (Cont’d) dant’s probation as to all sentences. Dasher v. State, 166 Ga. App. 237, 304 S.E.2d 87 (1983). Drug test evidence insufficient for revocation. — Revocation of probation based on the defendant’s failure of a drug test was error because the test result lacked probative value since no expert testimony was offered by the state to prove the scientific reliability of the ontrack system as used for the purpose of drug detection. Bowen v. State, 242 Ga. App. 631, 531 S.E.2d 104 (2000). Revocation did not cause ex post facto violation. — Use of the amended version of O.C.G.A. § 42-8-34.1 when an appellant’s probation was revoked due, in part, to the appellant’s failure to abide by a special condition of the probation, did not implicate ex post facto concerns inasmuch as the imposition of a probated sentence is within the discretion of the sentencing court and the appellant did not have a substantial right to receive probation, much less to receive probation that could not be revoked in its entirety upon violation of a special condition of proba- 17-10-1 tion. Walker v. Brown, 281 Ga. 468, 639 S.E.2d 470 (2007). Revocation reversed based on ground different than alleged in petition. — Trial court erred in revoking defendant’s probation on a basis that was not alleged in the state’s revocation petition as the state’s petition to revoke sought to do so on the ground that the defendant committed a new offense of misdemeanor stalking, but the trial court’s order provided that it was revoking probation on the ground that the defendant committed a new felony offense, presumably the offense of aggravated stalking mentioned by the state during the revocation hearing. Ponder v. State, 341 Ga. App. 276, 800 S.E.2d 19 (2017). Defendant’s probation may not be revoked when there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there was evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given; thus, if a judgment was based upon an offense not charged in the petition for revocation, it must be reversed. Ponder v. State, 341 Ga. App. 276, 800 S.E.2d 19 (2017).