This is the second appearance of this case before this Court. In its first appearance, Timothy Steven Gearin, following his guilty plea1 and conviction for cruelty to children in the first degree and enhanced sentencing under OCGA § 17-10-17, challenged the constitutionality of OCGA § 17-10-17 and the propriety of the enhanced sentence he received pursuant to that statute. Gearin v. State (“Gearin I”).2 Because “our Supreme Court has exclusive jurisdiction over all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question,” we found that we had no jurisdiction to consider the question. (Punctuation omitted.) Id. at 189 (3).

The case then went up to the Supreme Court on certiorari, whereupon it was remanded to this Court for reconsideration in light of Botts v. State,3 an opinion issued approximately two months after Gearin I. In Botts, the Supreme Court held that “OCGA § 17-10-17 is too vague to justify the imposition of enhanced criminal punishment for its violation,” and ruled the statute unconstitutional. Id. at 540.

A review of the record of the plea shows that the trial court enhanced Gearin’s sentence in accordance with OCGA § 17-10-17. Since the sentence was entered based on an unconstitutional statute, it was void. The sentence is therefore vacated and the case is remanded for resentencing.

Sentence vacated and case remanded for resentencing.