On May 20, 2021, the Georgia Court of Appeals decided Murrell v. State (A21A0495). The opinion was written by the court's most prolific "tweeter," Judge Dillard.
A prior appeal of Murrell's case had resulted in the setting aside of his conviction on one count for terroristic threats. When the case was returned from the Court of Appeals to the Superior Court, a process called remittitur, no one spent a whole lot of time thinking about how that affected the remaining sentence. The trial judge simply entered an order accepting the judgment of the Court of Appeals as the sentence of the court.
This became important because the original sentence would have resulted in a 30 year incarceration sentence. However, this occurred because one count was specified to run consecutively with the subsequently invalidated count. Since that count was no longer a part of the sentence, that count was interpreted as running concurrently with the other sentences.
The State learned of this interpretation some years later when they received notice of the intent of the Parole Board to grant parole to Murrell. The State conferred with the Parole Board and the Department of Corrections who suggested that maybe the trial court could clarify its sentence. The sentencing judge was no longer on the bench, but his replacement was only too eager to push Murrell's sentence back up to 30 years by "clarifying" that Count 12 was supposed to run consecutively to those other counts too, not just the invalidated Count 13.
The problem for the State and the trial court was that the suggestion of state agencies is not legal authority to take legal action on someone's sentence.
First, this was not a void sentence which can be corrected at any sentence. In fact, it was clear from the actions of the Parole Board that the sentence was perfectly capable of interpretation; the State just did not like that interpretation.
Second, a motion in arrest of judgment would have to have been filed in the same court term that the remittitur came back to the trial court. No such motion was timely filed. The State's motion was filed more than 120 days after the return of the receipt of the remittitur and two years after the term of court expired.
Third, a motion for modification of sentence must be filed within one year of the sentence becoming final. Again, that deadline was long since passed.
Fourth, the State suggested that certain rights of victims to notice or to object to parole somehow conferred authority on the trial court to "clarify" this sentence. The Court of Appeals pointed out that the statutes did not support that argument.
Consequently, the sentence stood as done after the remittitur. The subsequent clarification order was set aside as the trial court lacked jurisdiction to enter such an order.
Excellent appellant lawyering by Sean Lowe of the Rome Circuit Public Defender's Office.
Posted Oct 30, 2022 at 09:32:30
I have a very close friend that was just sentenced on August 29th. His earliest possible parole date is April 2024. He was charged with 3 felony counts: Computer Pornography, and 2 counts of Criminal Attempt Felony. This happened on 3/12/2018. Would this be eligible for a Sentencing Modification? First time offense, as well as a disabled military veteran. We would like to fight this if you think we have a fight? Maybe statute of limitations is something to look into? Any help would be greatly appreciated
Sean A. Black Reply
Posted Oct 31, 2022 at 05:53:54
I try to make clear. Every single person who is sentenced on a felony has one year from the sentence becoming final to petition for sentence modification. If all that they have to offer is that they would like a lesser sentence, they will be denied. It is not a coupon or a rebate offer. You have to go into it with some good reasons why the judge should reconsider the sentence that was imposed. That most often has to do with things that changed after the initial sentencing. The things that you identified are things that were known at the time of sentencing and would probably not convince a judge to reconsider the sentence imposed. Where the initial sentence was the product of a negotiated plea, a petition for sentence modification is very rarely going to be granted, because the person got what they bargained for.
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