Opinion
A22D0257
03-07-2022
CHRISTOPHER BUTLER v. THE STATE.
The Court of Appeals hereby passes the following order:
In 2019, Christopher Butler was convicted of possession of cocaine with the intent to distribute, possession of methamphetamine, possession of a Schedule IV controlled substance, and possession of a firearm by a convicted felon. After the denial of his motion for new trial, Butler appealed to this Court. We affirmed his convictions in an unpublished opinion on October 20, 2021. See Case No. A21A0788. Butler filed a motion to modify his sentence, which the trial court denied on January 18, 2022. On February 14, 2022, Butler filed this timely application for discretionary appeal.
Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. See von Thomas v. State, 293 Ga. 569, 571 n.5 (748 S.E.2d 446) (2013); Frazier v. State, 302 Ga.App. 346, 348 (691 S.E.2d 247) (2010). Butler filed his motion to modify and the trial court denied that motion within 120 days after remittitur following Butler's direct appeal. Consequently, Butler was not required to file an application for discretionary appeal to challenge the trial court's order, as the denial of a timely motion to reduce or modify sentence under OCGA § 17-10-1 (f) is subject to direct appeal. See, e. g., Bowen v. State, 307 Ga.App. 204, 204 n. 2 (704 S.E.2d 436) (2010).
Under OCGA § 5-6-35 (j), this Court will grant a timely discretionary application if the lower court's order is subject to direct appeal. Accordingly, this application is hereby GRANTED. If he has not already done so, Butler should file a notice of appeal in the superior court within ten days of the date of this order. See OCGA § 5-6-35 (g). The clerk of the superior court is DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.