Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A24D0223. JAIRUS B. MOORE v. DEKALB SUPERIOR COURT JUDGES, et

al.

Following a 1998 jury trial, Jairus B. Moore was convicted of rape, aggravated

sodomy, and other crimes, and was sentenced to life plus 30 years in incarceration.

On appeal, this Court affirmedMoore’s convictions and sentence. Moore v.State, 246

Ga. App. 163 (539 SE2d 851) (2000). In 2007, the trial court denied Moore’s motion

to correct his sentence, rejecting his claim that the sentence was void. This Court

subsequently dismissed as untimely Moore’s application seeking a discretionary

appeal from that order. Moore v. State, Case No. A08D0063 (Oct. 23, 2007). Over a

decade later, Moore sought to file a petition for a writ of mandamus to compel the

State Board of Pardons and Parolesto consider him for parole. The trial court denied

that filing, and this Court dismissed Moore’s direct appeal of the trial court’s order

based on his failure to file an application for discretionary appeal. Moore v. Bernard,

Case No. A20A1239 (Feb. 11, 2020).

InApril 2022, Moore filed a motion seeking to clarify his sentence with respect

to parole eligibility. Approximately one year later, in May 2023, Moore filed a

“Motion to Correct Void Sentence.” After the trial court failed to take action on

either motion, Moore sought to file a mandamus petition to compel the DeKalb

County Superior Court to decide his pending motions. On December 20, 2023, the

ChiefJudge ofthe DeKalb County Superior Court enteredanorder recusing all judges

of that court from deciding Moore’s mandamus petition and requesting that a judge

February 07, 2024
from another court be assigned to rule on that petition. Two days later, on December

22, 2023, the DeKalb County Superior Court entered an order denying Moore’s

motion to clarify his sentence and dismissing his motion to correct his allegedly void

sentence. In doing so, the trial court noted, inter alia, that the motions were

duplicative of prior motions, all of which the court had denied; that the sentence

required no clarification; and that Moore’s sentence was not void. On January 4,

2024, the judge appointed to decide Moore’s mandamus petition entered an order

holding that the relief Moore sought was now moot, as the DeKalb County Superior

Court had decided his pending motions. Accordingly, the judge dismissed the

mandamuspetition.Moore then filedthis applicationfordiscretionary appeal, seeking

review of the order denying his motion to clarify and dismissing his motion to correct

a void sentence, as well as the order dismissing his petition for mandamus.Forreasons

explained below, we dismiss the application.

To the extent that Moore is seeking to challenge the dismissal of his motion to

modify his sentence, his appeal is barred as a matter of law. Under OCGA § 17-10-1

(f), a court may modify a sentence only during the year after its imposition or within

120 days after remittitur following a direct appeal, whichever is later. Frazier v. State,

302 Ga. App. 346, 348 (691 SE2d 247) (2010). Once this statutory period expires, as

it has here, a trial court may modify a sentence only if that sentence is void — i.e, only

if it imposes a punishment that the law does not allow. Id. See also Jones v. State, 278

Ga. 669, 670 (604 SE2d 483) (2004) (“[w]hen the sentence imposed falls within the

statutory range of punishment, the sentence is not void and is not subject to

post-appeal modification”). Thus, a defendant may not appeal an order denying a

motion to amend or modify his sentence unless he can raise a colorable claim that the

sentence is, in fact, void. Jones, 278 Ga. at 669. See also Burg v. State, 297 Ga. App.

118, 119 (676 SE2d 465) (2009). Here, the record shows that the sentences imposed

on Moore were within the statutory range for the crimes of which he was convicted.

Accordingly, Moore is not entitled to appeal the denial of his motion seeking

modification of his sentence.
Additionally, Moore’s appeal of the order disposing of his motions for

clarification and modification of his sentence are barred because the issues raised by

those motions have or could have been litigated in prior appeals. See Echols v. State,

243 Ga. App. 775, 776 (534 SE2d 464) (2000) (“It is axiomatic that the same issue

cannot be relitigated ad infinitum. The same is true of appeals ofthe same issue on the

same grounds.”)(punctuation omitted); Jackson v. State, 273 Ga. 320, 320 (540 SE2d

612) (2001) (a party “is not entitled to another bite at the apple by way of a second

appeal”). See also Norris v. Norris, 281 Ga. 566, 567-568 (2) (642 SE2d 34) (2007)

(the dismissal of an application for discretionary appeal acts as res judicata as to the

issues raised in the application); Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438)

(2011) (dismissal of previous appeal constitutes the binding law of the case, even

though the appeals court did not reach the merits of the claim in the prior case).

Finally, the fact that the DeKalb County Superior Court has ruled on Moore’s

pending motions renders moot the relief he sought via his petition for mandamus. See

Richards v. Wells Fargo Bank, N.A., 325 Ga. App. 722, 726 (5) (b) (754 SE2d 770)

(2014) (for appellate purposes, a motion is moot if a ruling would have no practical

effect on the case); OCGA § 5-6-48 (b) (3) (an appeal may be dismissed when the

questions presented have become moot).

Because the issues Moore seeks to raise are barred as a matter of lawand/or are

moot, this application for discretionary appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia

Clerk’s Office,Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

02/07/2024