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Kirvin Clarkv.The State

CourtCourt of Appeals of Georgia
Docket No.A14A0692
DecidedJuly 14, 2014
Reporter328 Ga. App. 268, 761 S.E.2d 826 (2014)
JudgesPresiding Judge Ellington authored the opinion; Chief Judge Phipps concurred; Judge McMillian concurred in Divisions 1, 2, and 4 and in the judgment
Tags
CriminalCriminal LawCriminal ProcedureSentencingStatutory InterpretationDue ProcessRemand
Case Summary

Kirvin Clark pleaded guilty to child molestation and received a 20-year sentence to serve in prison. He moved to correct the sentence as illegal, arguing that Georgia law required a split sentence for a first conviction. The Court of Appeals vacated the sentence and remanded. It held that OCGA § 17-10-6.2(b), read with the child-molestation penalty provision, required at least five years of imprisonment followed by at least one year of probation; an imprisonment-only sentence rendered the statutory split-sentence requirement meaningless and was void. The Court also held that the trial court had failed to consider its separate discretion under § 17-10-6.2(c)(1) to impose a sentence below the mandatory minimum when the statutory conditions were satisfied. The plea record showed that neither counsel nor the prosecutor informed the court of that option, and the court appeared to believe that 20 years’ imprisonment was mandatory. On remand, the trial court could still decline to depart from the minimum, but it had to exercise and place that discretion on the record. The sentence was vacated and the case remanded for resentencing.

Opinion

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