FIRST DIVISION

DOYLE, C. J.,

ANDREWS, P. J., and RAY, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 14, 2016

In the Court of Appeals of Georgia

A16A1269. COLLINS v. THE STATE.

ANDREWS, Presiding Judge.

More than 17 years after completing a sentence of probation under the First

Offender Act,

1 Timothy Curtis Collins filed a “Motion for Discharge and

Exoneration” challenging a 1998 order of the Superior Court of Clayton County

which found that Collins’ performance of his sentence of probation was

“unsatisfactory.” The trial court denied Collins’ motion, and he appeals. Because we

construe Collins’ motion as one to correct a void sentence, and because we further

conclude that the trial court’s 1998 sentencing order was void, we reverse and remand

this case for entry of an order of exoneration and discharge consistent with the First

Offender Act.

1

 OCGA § 42-8-60 et seq. (2016).
On February 7, 1995, Collins entered a negotiated plea of guilty to one count

of theft by taking and one count of theft by receiving stolen property.

2 The Superior

Court of Clayton County sentenced Collins to three years to be served on probation

under the provisions of the First Offender Act.

3 On Friday, February 6, 1998, a

Clayton County probation officer completed a “Petition Seeking Adjudication of

UnsatisfactoryPerformance Under First Offender Sentence.”The petition alleged that

Collinsfailed to fulfill the requirements of first-offender probation in view of Collins’

three traffic violations committed during the term of probation. The petition did not

seek an adjudication of guilt or revocation of Collins’ probation. See OCGA § 42-8-

38 (1998) (revocation of probation); OCGA § 42-8-60 (b) (1998). Of note, the record

does not contain any evidence that the petition was filed with the clerk of court or the

trial judge or that the petition was served upon Collins or his counsel.

4 On Monday,

2 A third count, fleeing and attempting to elude a police officer, was resolved

by an order of nolle prosequi. 

3 Approximately three months after sentencing, the State filed a motion to

revoke Collins’ probation. Following a hearing, the trial court determined that “the

terms of probation had not been violated” and denied the State’s motion. 

4 See OCGA § 17-1-1 (a) (service of pleadings upon each party); (b) (manner

of service of pleadings); (c) (filing of pleadings with court “either before service or

immediately thereafter”); (d) (filing of pleadings accomplished by filing with the

clerk of court “unless the judge permits the papers to be filed with him, in which

2
February 9, 1998, the trial court executed an order granting the State’s petition,

concluding that Collins’ performance “under the First Offender sentence is found to

be unsatisfactory.” As a result, the trial court found that Collins “is not entitled to

discharge and exoneration as provided in Sec. 42-8-62. . . .” There is no indication

in the record that the trial court conducted a hearing on the State’s petition. The trial

court filed its order on February 11, 1998. 

Some 17 yearslater, on October 5, 2015,Collinsfiled a “Motion for Discharge

and Exoneration” in which he asked the trial court for an order “formalizing

[Collins’] exoneration” under the First Offender Act. The trial court concluded that

Collinsfailed to show “any abuse of discretion in the Court’s 1998 determination that

[Collins] was not entitled to relief under the First Offender Act” and denied his

motion. Collins’ appeal followed. 

1. We are obligated to question our jurisdiction “in any case in which there may

be a doubt about the existence of such jurisdiction.” Sanders v. State, 280 Ga. 780,

782 (1) (631 SE2d 344) (2006). Here, Collins filed a motion in 2015 to challenge a

1998 order denying him exoneration and discharge under the First Offender Act.

event he shall note thereon the filing date and transmit them to the office of the

clerk”); (e) (proof of service) (1998).

3
Collins could have sought an appeal from that order as late as March 13, 1998, but

no appeal was filed5and his opportunity to appeal that order expired long ago.

6 See

OCGA § 5-6-38 (a). Accordingly, unless Collins’ motion is of a kind which may be

brought at any time, and Collins invoked the correct procedure to appeal the order

denying his motion, we lack jurisdiction and Collins’ appeal must be dismissed.

Collins points to no law which authorizes the specific motion he filed.

7 See,

e.g., State v. Green, 308 Ga. App. 33, 34 (1) (706 SE2d 720) (2011) (“[A] motion to

5 See OCGA § 42-8-64 (1998). We need not decide here whether Collins

should have pursued a direct or discretionary appeal inasmuch as no effort to appeal

was made. See OCGA §§ 5-6-34 (a), 5-6-35 (a). Compare OCGA § 42-8-64; Mobley

v. State, 192 Ga. App. 719 (386 SE2d 384) (1989) (appeal from an order of

adjudication of guilt and revocation of sentence issued pursuant to First Offender Act

is by discretionary appeal).

6 There is no allegation in the record that Collins did not receive notice of the

order, which otherwise might have triggered the available out-of-time appeal

procedure. See, e.g., Porter v. State, 271 Ga. 498, 499-500 (521 SE2d 566) (1999);

Whitfield v. State, 313 Ga. App. 297, 299 (1) (721 SE2d 211) (2011).

7 Unlike a petition to remove a listing on the sexual offender registry, there is

no similar statutory procedure under the First Offender Act to addressthe trial court’s

judgment in this case. Compare OCGA § 42-1-19. Furthermore, we note that recent

revisions to the Act by the 2016 General Assembly, effective July 1, 2016, provide

for: (1) filing a petition in the sentencing court to seal certain records following

exoneration and discharge (see OCGA § 42-8-62.1 (c) (2016)); and (2) filing a

petition for exoneration and discharge in the county of conviction for defendants who

originally qualified for first offender treatment but were not informed of their

eligibility. See OCGA § 42-8-66 (2016). Neither situation is present in this case.

4
vacate a judgment of conviction is not an established procedure for challenging the

validity of a judgment in a criminal case.”). See also Harper v. State, 286 Ga. 216,

217 (1) (686 SE2d 786) (2009). He does not challenge the trial court’s judgment of

conviction, but essentially asks the trial court to remove a sentencing provision (i.e.,

the prohibition against exoneration and discharge) which is not authorized under

Georgia law.8 See Spargo v. State, 332 Ga. App. 410, n. 1 (773 SE2d 35) (2015) (“[a]

claimchallenging a conviction and a claim challenging the resulting sentence as void

are not the same”). As a result, Collins’ motion most closely resembles a motion to

correct a void sentence. See Davis v. State, 330 Ga. App. 711, 712 (769 SE2d 133)

(2015) (“there is no magic in mere nomenclature, and pleadings are construed to serve

the best interests of the pleader, and are judged by function rather than name.”).

A motion to correct a void sentence may be filed at any time. See OCGA § 17-

9-4; Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010); Spargo, 332 Ga. App.

at 410. “[T]he only ground for authorizing a trial court to correct a sentence at any

8 As a result, irrespective of the timeliness of his motion, Collins’ motion

cannot be characterized as a petition for habeas corpus, a motion to withdraw a guilty

plea, or a motion in arrest of judgment, each of which challenges the underlying

judgment of conviction rather than the sentence. See also Harper, 286 Ga. at 217 (1).

Nor does the motion qualify as an extraordinary motion for new trial in view of

Collins’ guilty plea. See OCGA § 5-5-41; Spargo v. State, 332 Ga. App. 410, n. 1

(773 SE2d 35) (2015).

5
time is that the sentence is void. A sentence is void if the court imposes punishment

that the law does not allow.” Spargo, 332 Ga. App. at 411. “When the sentence

imposed falls within the statutory range of punishment, [however,]the sentence is not

void[.]” Id.

Under the First Offender Act, a person is either exonerated of guilt and stands

discharged as a matter of law upon completion of the term of probation (OCGA § 42-

8-60 (e) (2016)) or adjudicated guilty in a petition filed prior to the expiration of the

sentence (OCGA § 42-8-60 (d) (2016)); the statute does not provide for any other

alternative.9 Stated differently,

A first offender’s guilty plea does not constitute a ‘conviction’ as that

term is defined in the Criminal Code of Georgia. Rather, under the first

offender statute, until an adjudication of guilt is entered, there is no

conviction. The case has, in effect, been suspended during the period of

9 Although the 2016 General Assembly passed substantial revisionsto the First

Offender Act which took effect July 1, 2016, and which we apply here, the General

Assembly did not alter the two options long available under the Act - adjudication of

guilt or discharge. See OCGA § 42-8-60 (b) (1998), (2015) (adjudication of guilt);

OCGA § 42-8-62 (a) (1998), (2015) (discharge). See also Hill v. Willis, 224 Ga. 263,

265 (161 SE2d 281) (1968) (“a reviewing courtshould apply the law asit exists at the

time of its judgment rather than the law prevailing at the rendition of the judgment

under review”); Hammond v. State, 334 Ga. App. 781, 784, n. 12 (780 SE2d 440)

(2015) (same).

6
probation until eventually the probation is either revoked or it is

discharged; unless it is revoked, there is no conviction.

(Emphasis supplied; footnotes and punctuation omitted.) Cook v. State, — Ga. App.

—, No. A16A1105, 2016 Ga. App. LEXIS 477, *16 (4) (Aug. 8, 2016), citing Davis

v. State, 273 Ga. 14, 15 (537 SE2d 663) (2000). A punishment which deviates from

these limited options is not available and, therefore, it is void. See Spargo, 332 Ga.

App. at 411. In this case, Collins’ motion attacked a sentence imposed by the trial

court that was not permitted. See Shaheed v. State, 274 Ga. 716, 717 (559 SE2d 466)

(2002) (“When the trial court amended [Collins’]sentence to eliminate first offender

status, it effectively imposed an enhanced sentence. . . .”). As a result, we construe

Collins’ motion as a motion to correct a void sentence. See Davis, 330 Ga. App. at

712. Orders on motions to correct a void sentence may be appealed directly, and

Collinstimely filed a notice of appealfromthe trial court’s order denying his “Motion

for Discharge and Exoneration.” See Williams v. State, 271 Ga. 686, 689 (1) (523

SE2d 857) (1999) (“the denial of a petition to correct a sentence on the ground that

7
the original sentence was void is appealable as a matter of right”). Accordingly, we

have jurisdiction.

10

2. In view of our analysis in Division 1, supra, the State’s motion to dismiss

Collins’ appeal is denied.

11 See Williams, 271 Ga. at 689 (1). Compare OCGA § 42-8-

64; Hawkins v. State, 330 Ga. App. 547 (768 SE2d 523) (2015) (appeal from order

denying petition to remove listing from sexual offender registry is by discretionary

appeal); Mobley, 192 Ga. App. at 719 (appeal from an order of adjudication of guilt

and revocation of sentence issued pursuant to First Offender Act is by discretionary

appeal).

10 This case is dissimilar to Jayko v. State, 335 Ga. App. 684, 686 (782 SE2d

788) (2016), because, rather than challenge “a sentence condition to which [he] is no

longer subject[,]” Collins challenges a condition to which he is, but should not be,

subject (i.e., the stigma of a conviction). See State v. Mills, 268 Ga. 873, 875 (495

SE2d 1) (1998).

11 The State’s argument that Collins’ motion is subject to discretionary appeal

procedures because it addresses probation revocation ismisplaced. See Jones v. State,

322 Ga. App. 269 (745 SE2d 1) (2013); Zamora v. State, 226 Ga. App. 105 (485

SE2d 214) (1997). First, the State’s 1998 petition did not seek, and the trial court did

not impose, a revocation of Collins’ probation. Second, at the time the State’s 1998

petition was filed, Collins’ sentence had expired; as a result, there was no probation

to revoke. Compare Jones, 322 Ga. App. at 269 (“Before the expiration of the

probationary period, the state filed a petition for adjudication of guilt and imposition

of sentence. . . .”).

8
3. Prior to the expiration of Collins’ sentence, the State completed, but the

record contains no indication that it filed, a petition “seeking adjudication of

unsatisfactory performance.” Bearing in mind the two options available under the

First Offender Act, there are two primary deficiencies with the State’s petition. First,

to the extent the petition sought an adjudication of guilt, it was untimely. See OCGA

§ 42-8-38 (a) (1998); State v. Mills, 268 Ga. 873, 874 (495 SE2d 1) (1998) (failure

of State to file a petition to revoke defendant’s probation during the term of probation

precluded State’s argument that defendant failed to fulfill the terms of his probation).

Compare Jones, 322 Ga. App. 269; State v. Boyd, 189 Ga. App. 617, 617-618, 619

(377 SE2d 11) (1988) (State filed petition for adjudication of guilt prior to expiration

of sentence; “We do not reach the issue of whether a different result would obtain if

the state had failed to file its ‘Petition for Adjudication of Guilt and Imposition of

Sentence’ prior to the expiration of the period of first offender probation. . . .”).

Second, and of particular relevance, Georgia law does not recognize the trial court’s

sentence denying Collins discharge and exoneration as sought by the State. See

Division 1, supra; Shaheed, 274 Ga. at 717; Davis, 273 Ga. at 15 (“[u]nder the first

offender statute, until an adjudication of guilt is entered, there is no conviction.”);

Mills, 268 Ga. at 875 (“Nothing in [the Act] expressly provides that a ‘discharge’

9
from first-offender probation is not . . . automatic, but must be formalized to become

effective.”). Thus, “if a first-offender probationer is not ‘discharged’ pursuant to

OCGA § 42-8-62, it is only because he did not successfully complete his term of

probation.” Mills, 268 Ga. at 875. “Successful completion” of the term of probation

is measured by whether the State timely filed a petition for revocation. See OCGA §

42-8-60 (e), (g) (2016); Mills, 268 Ga. at 875. In this case, it did not. Therefore, we

conclude that the trial court’s sentence denying Collins exoneration and discharge is

void as a matter of law. As a result, the trial court’s order denying Collins’ motion is

reversed and this case is remanded for entry of an order of exoneration and discharge

consistent with the First Offender Act.

12 See OCGA § 42-8-60 (e), (g), (h) (2016). 

Judgment reversed and case remanded. Doyle, C. J., and Ray, J. concur.

12 We emphasize that, generally, such an order is not required. See OCGA § 42-

8-60 (e), (g) (2016); Mills, 268 Ga. at 875 (“Nothing in [the Act] expressly provides

that a ‘discharge’ from first-offender probation is not . . . automatic”).

10