Opinion
No. A13A0337.
2013-07-31
JACKSON v. The STATE.
Curtis Jackson, pro se. Richard G. Milam, Dist. Atty., Lauren Alicia Love, Asst. Dist. Atty., for Appellee.
Curtis Jackson, pro se. Richard G. Milam, Dist. Atty., Lauren Alicia Love, Asst. Dist. Atty., for Appellee.
MILLER, Judge.
Curtis Jackson, pro se, appeals from the trial court's dismissal of his emergency motion to modify and vacate a void sentence pursuant to OCGA § 17–10–1(f). Jackson contends that the trial court improperly dismissed his motion as untimely, that his sentence is null and void because it exceeds the statutory maximum, and that his sentence should not have been imposed consecutively. Further, in his second enumeration, he contends that, at his sentencing, the trial judge was biased and invoked his personal emotions against him.
The record shows that a jury found Jackson guilty of two counts of receiving stolen property (OCGA § 16–8–7(a)), and one count of operating a vehicle without a valid license plate. Jackson was sentenced to ten years on each theft by receiving count, to be served consecutively to one another. Jackson filed an appeal of the trial court's denial of his motion for an out-of-time appeal, which was affirmed by this Court in Jackson v. State, 313 Ga.App. 483, 722 S.E.2d 80 (2011). Jackson applied for a writ of certiorari, which was denied by the Georgia Supreme Court on October 1, 2012. Jackson v. State, 2012 Ga. LEXIS 1031 (Ga., Oct. 1, 2012). Prior to this, however, on July 16, 2012, Jackson filed in the trial court his emergency motion to modify and correct sentence, which the trial court dismissed on August 16, 2012 as untimely. The remittitur from this Court was issued to the trial court on January 8, 2013.
1. Jackson contends that the trial court incorrectly dismissed as untimely his motion to modify and vacate sentence. We agree. 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. Frazier v. State, 302 Ga.App. 346, 347–348, 691 S.E.2d 247 (2010); Burg v. State, 297 Ga.App. 118, 676 S.E.2d 465 (2009).
Therefore, as shown by the chronology set out above, the trial court's dismissal of Jackson's motion to modify and correct sentence as untimely was error.
2. Jackson contends that the trial court erred in imposing consecutive sentences. We agree. As correctly conceded by the State in its brief, the separate counts of theft by receiving stolen property may merge as a matter of fact and Jackson cannot be sentenced for two consecutive 10–year terms.
“[W]ith respect to receiving or concealing stolen property ... [if] articles stolen at different times from several persons [are] received and concealed by the same act ... then there is but one offense.” (Citations and punctuation omitted.) Hardin v. State, 141 Ga.App. 115, 118(4), 232 S.E.2d 631 (1977); see also Westmoreland v. State, 151 Ga.App. 850, 851, 261 S.E.2d 761 (1979).
Therefore, this case must be remanded to the trial court for re-sentencing consistent with this opinion.
3. We are unable to consider Jackson's contentions that the trial court was biased and invoked his personal opinion against Jackson because there is no transcript of the sentencing hearing before us.
“As the appellant, [Jackson] had the burden to affirmatively show error by the record.” (Citation and punctuation omitted.) Fisher v. One Stop Mtg., 258 Ga.App. 479, 480, 574 S.E.2d 605 (2002). Jackson has failed in his burden to show any asserted error affirmatively by the record. Holzmeister v. State, 156 Ga.App. 94(1), 274 S.E.2d 109.
Judgment reversed and remanded with direction.