SUPREME COURT OF GEORGIA

Case No. S22A0174

April 19, 2022

The Honorable Supreme Court met pursuant to adjournment. 

The following order was passed:

SAUL E. POLANCO v. THE STATE.

In November 2019, appellant Saul Polanco pleaded guilty to 

felony murder, aggravated assault, possession of a knife during 

commission of a felony, and misdemeanor third degree cruelty to 

children. The amended final disposition was entered on December 

17, 2019, and reflects that the malice murder count was nolle 

prossed and that dispositions were entered as to the remaining 

counts. Appellant did not file a timely notice of appeal, but on June 

15, 2020, he filed a pro se motion for out-of-time appeal, which 

appointed counsel amended. On April 1, 2021, the trial court entered 

an order denying the motion for out-of-time appeal, and, after 

appellant’s counsel filed a motion for vacatur and re-entry of the 

order because she had not been served with it, the trial court vacated 

and re-entered the order on September 13, 2021. On September 14, 

2021, appellant’s counsel filed a notice of appeal. 

However, in Cook v. State, ___ Ga. ___ (___ SE2d ___) (2022 Ga. 

LEXIS 65, 2022 WL 779746) (Case No. S21A1270, decided Mar. 15, 

2022), this Court eliminated the judicially created out-of-timeappeal procedure in trial courts, holding that a trial court is “without 

jurisdiction to decide [a] motion for out-of-time appeal” on the merits 

because “there was and is no legal authority for motions for out-oftime appeal in trial courts.” Id. at ___ (5) (slip op. at 82). Cook also 

concluded that this holding is to be applied to “all cases that are 

currently on direct review or otherwise not yet final[,]” id., and 
2

directed that “pending and future motions for out-of-time appeals in 

trial courts should be dismissed, and trial court orders that have 

decided such motions on the merits . . . should be vacated if direct 

review of the case remains pending or if the case is otherwise not 

final.” Id. at ___ (4) (slip op. at 80-81). 

Accordingly, the trial court’s September 13, 2019 order denying

appellant’s motion for out-of-time appeal is vacated, and this case is 

remanded for the entry of an order dismissing appellant’s motion. 

Appellant is advised that any subsequent attempt to appeal the trial 

court’s order entering the judgment of conviction and denying his 

motion for out-of-time appeal will likely be dismissed as untimely. 

See OCGA § 5-6-38 (a). Furthermore, the trial court’s entry of an 

order on remand dismissing appellant’s motion for out-of-time 

appeal will be unlikely to present any cognizable basis for an appeal. 

See Henderson v. State, 303 Ga. 241, 244 (811 SE2d 388) (2018); 

Brooks v. State, 301 Ga. 748, 752 (804 SE2d 1) (2017). If appellant 

believes that he was unconstitutionally deprived of his right to 

appeal, he may be able to pursue relief for that claim through a 

petition for habeas corpus, along with claims alleging deprivation of 

his constitutional rights in the proceedings that resulted in his 

conviction. See OCGA § 9-14-41 et seq. Appellant should be aware 

of the possible application of the restrictions that apply to such 

habeas corpus filings, such as the time deadlines provided by OCGA 

§ 9-14-42 (c) and the limitation on successive petitions provided by 

OCGA § 9-14-51.

All the Justices concur.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true extract from the

minutes of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto

affixed the day and year last above written.

, Clerk
3

ELLINGTON, Justice, concurring.

After Saul Polanco fatally stabbed his wife, he entered a 

negotiated guilty plea to felony murder predicated on aggravated 

assault, along with other charges, on November 19, 2019. After the 

time allowed for filing a notice of appeal, Polanco filed pro se a 

motion for out-of-time appeal, which the trial court denied. The 

Court is vacating the trial court’s order denying Polanco’s motion for 

out-of-time appeal and remanding the case for dismissal of his 

motion, consistent with our recent decision in Cook v. State, ___ Ga. 

___ (5) (___ SE2d ___) (Case No. S21A1270, decided Mar. 15, 2022).

Although neither party has yet challenged the validity of Polanco’s 

sentence, I wish to point out that the trial court imposed a sentence 

for Polanco’s felony murder conviction that is not allowed by Georgia 

law. Specifically, the trial court sentenced Polanco on Count 2 to 

“[l]ife with [the] first 25 [y]ears to be served in confinement not 

eligible for parole, balance probated[.]” This is an illegal and void 

sentence for a felony murder conviction, as explained below, and is 

subject to being vacated.
4

Georgia’s Criminal Code provides: “A person convicted of the 

offense of murder shall be punished by death, by imprisonment for 

life without parole, or by imprisonment for life.” OCGA § 16-5-1 (e) 

(1). Thus, for a conviction of felony murder, “death and 

imprisonment for life, with or without the possibility of parole, are 

the only sentences prescribed by law.” State v. Hanna, 305 Ga. 100, 

102 (2) (823 SE2d 785) (2019). See also Humphrey v. State, 297 Ga. 

349, 351 (773 SE2d 760) (2015) (“[T]he law only authorized the trial 

court to sentence [the defendant for murder] to death, imprisonment 

for life without any possibility of parole ever, or imprisonment for 

life with the possibility of parole as soon as permitted by law.” 

(citation omitted)). 

OCGA § 17-10-1 (a) (1) (A), the Code section that grants the 

power and authority to a judge, in fixing determinate criminal 

sentences generally, to suspend or probate all or part of a sentence, 

expressly excludes cases in which imprisonment for life, with or 
5

without the possibility of parole, may be imposed.1 See Langley v. 

State, __ Ga. __, __ (2) (Case No. S21G0783, decided Feb. 1, 2022) 

(discussing penal statutes that include language expressly 

prohibiting probation for all or some part of a sentence for particular 

offenses). Thus, OCGA § 17-10-1 (a) (1) (A) does not authorize a trial 

court to probate any part of a life sentence. See id.

At sentencing, the trial court expressed its intention “to deviate 

from the mandatory minimum” sentence for felony murder, and it 

imposed a split sentence including a term of imprisonment of 25 

years followed by probation for life.2 This particular sentence 

 1 OCGA § 17-10-1 (a) (1) (A) provides: 

Except in cases in which life imprisonment, life without 

parole, or the death penalty may be imposed, upon a verdict or plea 

of guilty in any case involving a misdemeanor or felony, and after 

a presentence hearing, the judge fixing the sentence shall 

prescribe a determinate sentence for a specific number of months 

or years which shall be within the minimum and maximum 

sentences prescribed by law as the punishment for the crime. The 

judge imposing the sentence is granted power and authority to 

suspend or probate all or any part of the entire sentence under 

such rules and regulations as the judge deems proper[.]

2 At the guilty plea hearing, the trial court announced that, as to Count 

2, felony murder, “as agreed to by the State and the defense, the court is going 

to deviate from the mandatory minimum and sentence [Polanco] to life, with 

the first 25 years to be served in confinement, and he will not be eligible for 

parole. . . . [H]e is to serve the full term of life on probation after he serves his 

25 years [in prison].”
6

suggests reliance on two provisions of OCGA § 17-10-6.1, which 

provides for sentencing of persons convicted of serious violent 

felonies, as defined in that Code section; felony murder is designated

as a serious violent felony. See OCGA § 17-10-6.1 (a) (1). First, the 

split sentence, with probation for life following a defined term of 

imprisonment, suggests reliance on OCGA § 17-10-6.1 (b) (2), which 

requires a sentence of “a mandatory minimum term of imprisonment 

of 25 years, followed by probation for life” for persons convicted of 

certain serious violent felonies.3 Subsection (b) (2) lists the offenses 

 3 OCGA § 17-10-6.1 (b) (2) provides:

Except as provided in subsection (e) of this Code section, the 

sentence of any person convicted of the serious violent felony of:

(A) Kidnapping involving a victim who is less than 14 years 

of age;

(B) Rape;

(C) Aggravated child molestation, as defined in subsection 

(c) of Code Section 16-6-4, unless subject to the provisions of 

paragraph (2) of subsection (d) of Code Section 16-6-4;

(D) Aggravated sodomy, as defined in Code Section 16-6-2; 

or

(E) Aggravated sexual battery, as defined in Code Section 

16-6-22.2

shall, unless sentenced to life imprisonment, be a split 

sentence which shall include a mandatory minimum term of 

imprisonment of 25 years, followed by probation for life, and no 

portion of the mandatory minimum sentence imposed shall be 

suspended, stayed, probated, deferred, or withheld by the 

sentencing court.
7

for which that sentence is required; the General Assembly omitted 

felony murder from that list. Second, the trial court’s reference “to 

deviat[ing] from the mandatory minimum” suggests reliance on 

OCGA § 17-10-6.1 (e), which authorizes trial courts to “depart” from 

mandatory minimum sentences for certain serious violent felonies 

“when the prosecuting attorney and the defendant have agreed to a 

sentence that is below such mandatory minimum.”4 But the 

authority to depart from a mandatory minimum sentence is limited 

to cases where a mandatory minimum sentence for a particular 

serious violent felony is “specified in” OCGA § 17-10-6.1.5 Murder is 

not one of the serious violent felonies for which a mandatory 

minimum sentence is specified in OCGA § 17-10-6.1. Thus, OCGA § 

 4 OCGA § 17-10-6.1 (e) provides:

In the court’s discretion, the judge may depart from the mandatory 

minimum sentence specified in this Code section for a person who 

is convicted of a serious violent felony when the prosecuting 

attorney and the defendant have agreed to a sentence that is below 

such mandatory minimum.

(Emphasis supplied.)

5 See, e.g., OCGA § 17-10-6.1 (b) (1) (mandatory minimum sentences for

kidnapping involving a victim who is 14 years of age or older and for armed 

robbery), (2) (mandatory minimum sentences for kidnapping involving a victim 

who is less than 14 years of age, rape, aggravated child molestation, 

aggravated sodomy, and aggravated sexual battery).
8

17-10-6.1 does not authorize a trial court to impose a sentence for a 

murder conviction of 25 years in prison followed by probation for life, 

nor does the Code section authorize a trial court to deviate from the 

mandatory minimum sentence for murder set out in OCGA § 16-5-1 

(e) (1), including by probating a portion of a sentence for murder. See

Langley, __ Ga. at __ (2) (“OCGA § 17-10-1 (a) (1) (A) excludes ‘cases 

in which life imprisonment, life without parole, or the death penalty 

may be imposed’” from the power to probate sentences “and also 

makes the power to probate sentences ‘subject to the provisions of 

Code Sections 17-10-6.1 and 17-10-6.2,’ which limit the availability 

of probation for serious violent felonies and sexual offenses.”);6 see 

also Hanna, 305 Ga. at 102 (2); Humphrey, 297 Ga. at 351.

 6 OCGA § 17-10.6.2 provides in pertinent part:

(b) Except as provided in subsection (c) of this Code section, 

and notwithstanding any other provisions of law to the contrary, 

any person convicted of a sexual offense [as defined in subsection 

(a)] 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, 
9

Furthermore, a person who is convicted of felony murder and 

sentenced to life in prison pursuant to OCGA § 16-5-1 (e) (1) is not 

eligible for parole until he has served 30 years in prison. See OCGA 

§ 17-10-6.1 (c) (1).7 Thus, the trial court had no statutory authority 

to enter a sentence making Polanco eligible for parole after serving 

only 25 years in prison. Logically, there would seem to be no reason

to make a person convicted of murder eligible for parole, at the 

 

the requirement that the court impose a probated sentence of at 

least one year shall only apply to the final consecutive sentence 

imposed. No person convicted of a sexual offense shall be sentenced 

as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or 

any other provision of Georgia law relating to the sentencing of 

first offenders.

(c) (1) In the court’s discretion, the court may deviate from 

the mandatory minimum sentence as set forth in subsection (b) of 

this Code section, or any portion thereof, when the prosecuting 

attorney and the defendant have agreed to a sentence that is below 

such mandatory minimum provided that [specified circumstances 

exist].

7 OCGA § 17-10-6.1 (c) (1) provides: 

Except as otherwise provided in subsection (c) of Code 

Section 42-9-39 [concerning the authority of the State Board of 

Pardons and Paroles], for a first conviction of a serious violent 

felony in which the accused has been sentenced to life 

imprisonment, that person shall not be eligible for any form of 

parole or early release administered by the State Board of Pardons 

and Paroles until that person has served a minimum of 30 years 

in prison. The minimum term of imprisonment shall not be 

reduced by any earned time, early release, work release, leave, or 

other sentence-reducing measures under programs administered 

by the Department of Corrections.
10

discretion of the State Board of Pardons and Paroles, after serving 

just 25 years in prison, while simultaneously making the convicted 

murderer entitled to probation after that period of imprisonment, 

given that the probation portion of the sentence would not require 

any such exercise of the power of executive clemency by the Parole 

Board. Nevertheless, Polanco’s sentence is illegal to the extent it 

purports to require only the first 25 years of his life sentence “to be 

served in confinement not eligible for parole.”

Because the Criminal Code contains no provision authorizing 

a split sentence including probation for a murder conviction, nor any 

provision authorizing parole eligibility before 30 years served in 

prison for a murder conviction, the trial court imposed a plainly 

illegal sentence, and it is therefore void. See Hanna, 305 Ga. at 103 

(2) (“A sentence is void if the court imposes punishment that the law 

does not allow.” (citation omitted)). The fact that the State consented 

to Polanco’s sentence, including the probation and parole provisions, 

is immaterial because, “as we have indicated in a number of cases, 

the consent of the parties cannot validate a void sentence.” Ellison 
11

v. State, 299 Ga. 779, 780 (792 SE2d 387) (2016) (citation and 

punctuation omitted). See also Hanna, 305 Ga. at 103 (2) (“[A] 

sentence which is not allowed by law is void, and its illegality may 

not be waived.” (citation and punctuation omitted)).

A sentencing court “has the authority to correct a void sentence 

at any time,” including by resentencing the defendant. Parrott v. 

State, 312 Ga. 580, 582 (3) (864 SE2d 80) (2021). The Court of 

Appeals has held that, “[w]here a void sentence has been entered, it 

is as if no sentence has been entered at all, and the defendant stands 

in the same position as if he had pled guilty and not yet been 

sentenced. And pursuant to OCGA § 17-7-93 (b), the defendant may 

withdraw his plea as of right prior to sentencing.” Kaiser v. State, 

285 Ga. App. 63, 66 (1) (646 SE2d 84) (2007). See OCGA § 17-7-93 

(b) (“At any time before judgment is pronounced, the accused person 

may withdraw the plea of ‘guilty’ and plead ‘not guilty.’”). This Court 

quoted this passage from Kaiser in Hanna, 305 Ga. at 106 (3), and 

cited Kaiser with approval in Pierce v. State, 294 Ga. 842, 844 (1) 

(755 SE2d 732) (2014), paraphrasing that a “void sentence is a 
12

nullity and [the] defendant maintains his right to withdraw [his 

guilty] plea until he is properly sentenced.” In my view, it follows 

from Hanna, Pierce, and Parrott that, because Polanco has not been

properly sentenced for felony murder, he maintains his right under 

OCGA § 17-7-93 (b) to withdraw his guilty plea upon vacatur of the 

void sentence and that he can pursue vacatur of the void sentence 

by filing a motion in the trial court to vacate his murder sentence.

I am authorized to state that Chief Justice Nahmias joins in 

this concurrence.