It’s a Gray Day in Georgia for Motions to Modify Sentence

There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

Latest Resources

The future of Mediation with John Miles

The Future of Mediation with John Miles

John Miles of Miles Mediation & Arbitration, shares how the mediation process can bring more business to lawyers & satisfaction to clients. 
Read More
Building Up Your Client Base with Steve Murrin

Building Up Your Client Base with
Steve Murrin

The “Biker Lawyer” Steve Murrin built his own practice by focusing on connecting with the community through every outlet he could find.
Read More
The Importance of Prosecuting Animal Crimes with Jessica Rock

The Importance of Prosecuting Animal Crimes with Jessica Rock

Georgia animal crimes prosecutor, Jessica Rock fights animal crime by helping both prosecutors and law enforcement identify animal abuse.
Read More