WILDER v. the STATE.
WILDER v. the STATE.
Opinion
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On May 29, 2009, a Lincoln County jury found James Glenn Wilder guilty beyond a reasonable doubt in Case No. 2005-CR-3630 of aggravated child molestation, child molestation, statutory rape, and sexual exploitation of a child (two counts), based on acts he committed in 2003 and 2004. After a series of proceedings, including consideration by the Supreme Court of Georgia, Wilder's convictions were
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affirmed.
1
In August 2013, the case returned to the trial court for resentencing as directed in Wilder's original direct appeal,
Wilder v. State
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Wilder filed a motion for new trial after the resentencing. 3 The trial court conducted a hearing on February 16, 2017. The parties informed the court that they were in agreement that Wilder was entitled to be resentenced with respect to the child molestation conviction, which was Count 2, on the basis that OCGA § 17-10-6.2, which was enacted in 2006, requires a split sentence of at least the statutory minimum sentence of imprisonment for the offense plus at least one year of probation. 4 At the time of the hearing, the applicable statutory range for child molestation was not less than five nor more than twenty years imprisonment. OCGA § 16-6-4 (b) (1) (2017) ("[A] person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years[.]"). The trial court resentenced Wilder on Count 2 to five years consecutive to Count 1 (aggravated child molestation) plus an additional year on probation, for a total of six years, to serve five, on Count 2. The sentences now total thirty-six years, to serve twenty-five years in prison. Wilder again appeals.
In the current appeal, Wilder contends that, because OCGA § 17-10-6.2 was not enacted until after he committed the offenses in 2003 and 2004, the parties were mistaken in believing that the Code section applies. In this, Wilder is correct. 5 It does not necessarily follow, however, that reversal is required.
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"Under Georgia law, a sentence is void if the court imposes punishment that the law does not allow. A sentence that falls within the prescribed statutory limits, however, is legally authorized and is not subject to review by this Court." (Citation and punctuation omitted.)
Few v. State
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Judgment affirmed .
Andrews and Rickman, JJ., concur.
See
Wilder v. State
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An additional count of child molestation merged with the greater offense.
See Wilder v. State , Case No. A16A1288, decided September 8, 2016 (unpublished decision reversing the denial of Wilder's motion for an out of time appeal).
On the hearing date, OCGA § 17-10-6.2 (b) (2006) provides:
[N]otwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year ....
Fleming v. State
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OCGA §§ 16-6-4 (b) (2003) ("[A] person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years[.]"); 16-6-4 (b) (2004) ("[A] person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than 20 years[.]").
Reference
- Full Case Name
- James Glenn Wilder v. State
- Cited By
- 7 cases
- Status
- Published