FIFTH DIVISION
BARNES, P. J.,
MERCIER, P. J., and MARKLE, J.
NOTICE: Motions for reconsideration must be
received no later than 4:30pm on the 10th day after the
decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
September 17, 2026
In the Court of Appeals of Georgia
A26A1561. ALLEN v. THE STATE.
MERCIER, Presiding Judge.
Following the dismissal of his motion to vacate a void sentence, Marty Allen,
acting pro se, appeals, contending that the trial court erred in its determination that
he failed to raise a colorable claim that his sentence for child molestation was illegal
and should be reduced. For the reasons set forth below, we find that, although the trial
court should have denied rather than dismissed Allen’s motion, Allen’s claim that he
received an illegal sentence has no merit.
In relevant part, the record shows that Allen was convicted for two counts of
child molestation in 2019. Allen was initially sentenced on May 20, 2019, but that
sentence was modified three times – on July 31, 2019, April 12, 2024, and December 10, 2024. In the last modification, the trial court sentenced Allen to an aggregate of
twenty years, with ten years of imprisonment followed by ten years of probation.1
Within one year of the final amended sentence, on October 29, 2025, Allen filed
a pro se “Motion to Correct Illegal Sentence.” In this motion, Allen argued that
OCGA § 17-10-6.2(b) required that the trial court sentence him to no more than the
mandatory minimum amount of imprisonment applicable to the offense of child
molestation (5 years) and that, because the trial court exceeded this amount, his
sentence was void. In addition, Allen contended that he should be resentenced, with
his sentence being reduced to the mandatory minimum. On January 29, 2026, the trial
court ruled that it lacked jurisdiction and dismissed Allen’s motion for failure to state
a colorable claim that his sentence was void. This appeal followed.
As an initial matter, the trial court erred in its determination that it lacked
jurisdiction. Under OCGA § 17-10-1(f), a trial court retains jurisdiction and may
modify a sentence during the year after its imposition or within 120 days after
remittitur following a direct appeal, whichever is later. See Frazier v. State, 302 Ga.
1
Specifically, the trial court sentenced Allen to ten years imprisonment followed by ten years of probation on the first count of child molestation. On the second count, the trial court sentenced Allen to ten years imprisonment followed by ten years of probation, to run concurrently with the first count.
2
App. 346, 348 (691 SE2d 247) (2010). Here, Allen filed the motion asking the trial
court to vacate and reduce his sentence within one year of the last amended sentence,
and, as such, the trial court retained jurisdiction. Id. But, although the trial court erred
in its jurisdictional analysis, it was nonetheless correct in finding that the argument
made by Allen to support his request for a reduction in his sentence was
fundamentally incorrect.2
“A sentence is only void when the trial court imposes a punishment that the law
does not allow.” Ward v. State, 299 Ga. App. 63, 64 (682 SE2d 128) (2009)
(punctuation omitted). This may occur “because [the sentence] exceeds the most
severe punishment for which the applicable penal statute provides.” von Thomas v.
State, 293 Ga. 569, 572(2) (748 SE2d 446) (2013). Allen’s sentence does not suffer
from any such infirmity.
Resolution of this appeal rests mainly on two statutes. The first, OCGA §
16-6-4(b)(1) (2009) provides: “[A] person convicted of a first offense of child
molestation shall be punished by imprisonment for not less than five nor more than
2
We note that the denial of a timely motion to modify under OCGA § 17-10-1(f) may be subject to a direct appeal. See, e.g., Anderson v. State, 290 Ga. App. 890, 890 (660 SE2d 876) (2008).
3
20 years and shall be subject to the sentencing and punishment provisions of Code
Sections 17-10-6.2 and 17-10-7.”3 In turn, OCGA § 17-10-6.2(b) (2017) states:
[A]ny 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 such sexual offense. No
portion of the mandatory minimum sentence imposed shall be
suspended, stayed, probated, deferred, or withheld by the court. Any
such sentence shall include, in addition to the mandatory term of
imprisonment, an additional probated sentence of at least one year;
provided, however, that when a court imposes consecutive sentences for
sexual offenses, the requirement that the court impose a probated
sentence of at least one year shall only apply to the final consecutive
sentence imposed.
Allen now repeats the same argument that he raised below – he maintains that
OCGA § 17-10-6.2(b) (2017) required the trial court to sentence him only to the
mandatory minimum punishment for child molestation (5 years) plus one year of
probation. This interpretation, however, has no precedential support.
We have explained that OCGA § 17–10–6.2(b) “authorizes the trial court to
issue a split sentence that includes at least five years of imprisonment and at least one
year of probation, for a total of no more than twenty years.” Clark v. State, 328 Ga.
App. 268, 270(1) (761 SE2d 826) (2014) (emphasis added). See also Watkins v. State,
3
Allen concedes that his sentence falls within this range.
4
336 Ga. App. 145, 152(5) (784 SE2d 11) (2016) (same); Barton v. State, 338 Ga. App.
524, 525-26 (790 SE2d 538) (2016) (“In this case, the underlying offenses were two
counts of sexual battery, including one count against a child under the age of sixteen,
OCGA § 17–10–6.2 required the trial court to impose a split sentence that included
a mandatory minimum sentence of at least five years of imprisonment and at least one
year of supervised probation.”); Spargo v. State, 332 Ga. App 410, 411 (773 SE2d 35)
(2015) (“Thus, for a first conviction for child molestation, a trial court must impose
a split sentence that includes at least five years of imprisonment and at least one year
of probation, for a total of no more than twenty years.” (quotation marks omitted));
Holmes v. State, 375 Ga. App. 470, 481(3) (916 SE2d 500) (2025) (“OCGA § 17-10-6.2
authorizes [a] trial court to issue a split sentence that includes at least five years of
imprisonment and at least one year of probation, for a total of no more than twenty
years.”) (quotation marks omitted). In short, OCGA § 17–10–6.2(b) governs the
composition of the sentence imposed, not the appropriate sentencing range for the
offense committed.
Here, the trial court sentenced Allen to an aggregate of twenty years – ten years
of imprisonment and ten years of probation. This sentence is allowed by law and
5
statute, and, contrary to Allen’s interpretation, it is not void. While the trial court
properly reached this conclusion, it should have denied rather than dismissed Allen’s
motion to modify his sentence, as discussed above. For this reason, we must vacate
the trial court’s order dismissing Allen’s motion and remand this case with direction
that the trial court enter a new order denying the motion, instead.
Judgment vacated and case remanded with direction. Barnes, P. J., and Markle, J.
concur.
6