Ward v. State

In Ward v. State, 299 Ga. App. 63 (682 SE2d 128) (2009), the defendant filed a motion to correct void sentence eight years after his conviction, arguing that his sentence was void because the state failed to give the proper pretrial notice of its intent to use the defendant's prior conviction to seek recidivist punishment. As stated therein, ordinarily, our determination on direct appeal of a criminal judgment is res judicata, and a criminal defendant is not entitled to another bite at the apple by way of a second appeal. Nevertheless, a sentence that is void for any reason is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it. Accordingly, the denial of a motion to correct or vacate a void sentence is directly appealable. However, in determining whether a purported motion to correct or vacate a void sentence is in fact such a motion, we look to the substance of the motion rather than its nomenclature. A sentence is only void when the trial court imposes a punishment that the law does not allow. When the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA 17-10-1 (f). Id. at 64