                              FIRST DIVISION
                               DOYLE, C. J.,
                         PHIPPS, P. J, and BOGGS, 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


                                                                    January 6, 2016




In the Court of Appeals of Georgia
 A15A2240. PENDLETON v. THE STATE.                                           DO-084 C

      DOYLE, Chief Judge.

      Karl Pendleton appeals the denial of his motion to modify his sentence. For the

reasons that follow, we reverse and remand the case.

      Pendleton was charged with six counts of criminal attempt to commit armed

robbery, burglary, six counts of aggravated assault with intent to rob, possession of

a firearm during the commission of a felony, kidnapping with bodily injury, and five

counts of false imprisonment. In February 2008,1 he entered a non-negotiated guilty

plea and was sentenced to serve ten years.2 On October 27, 2008, Pendleton filed a


      1
       Pendleton entered his plea and was convicted on February 7, 2008, but his
sentence was not filed until February 11, 2008.
      2
        For sentencing purposes, the trial court merged the six counts of criminal
attempt to commit armed robbery into the six counts of aggravated assault with intent
motion to modify his sentence, to which the State did not respond. The trial court

denied the motion as untimely, holding that it lacked authority to modify Pendleton’s

sentence because the motion was filed after the expiration of the term of court in

which the convictions were entered.

      Pendleton appeals, arguing that the trial court erred by denying his motion as

untimely, and we agree. As the State concedes, OCGA § 17-10-1 (f) provides in

relevant part that “[w]ithin one year of the date upon which the sentence is imposed

. . . , the court imposing the sentence has the jurisdiction, power, and authority to

correct or reduce the sentence and to suspend or probate all or any part of the

sentence imposed.”3 “Notwithstanding the expiration of the term of court in which the

sentence was imposed, the provisions of OCGA § 17-10-1 (f) vested the trial court

with jurisdiction to consider and rule upon the merits of [Pendleton’s] motion within

[one year of the date upon which the sentence was imposed].”4 Thus, because



to rob.
      3
       OCGA § 17-10-1 (f) was enacted in 2001. See Ga. L. 2001, p. 94, § 5;
Reynolds v. State, 272 Ga. App. 91, 93 (1) (611 SE2d 750) (2005).
      4
       Davis v. State, 291 Ga. App. 252, 253 (661 SE2d 872) (2008). See also
Richardson v. State, ___ Ga. App. ___, ___ (Case No. A15A2113, decided Nov. 6,
2015).

                                         2
Pendleton filed his motion less than ten months after his sentence was imposed, the

trial court erred by denying the motion as untimely.5

                We note that whether to grant a motion to amend sentence lies
      within the discretion of the trial court[,] and we express no opinion on
      the underlying merits of [Pendleton’s] motion. Our decision requires
      only that the trial court decide the merits of the motion in accordance
      with the jurisdiction and authority conferred upon it by OCGA § 17-10-
      1 (f).6


      Judgment reversed and case remanded. Phipps, P. J., and Boggs, J., concur.




      5
          See Davis, 291 Ga. App. at 253.
      6
       (Punctuation and citation omitted.) Id., quoting Jackson v. State, 238 Ga. App.
559, 560 (2) (520 SE2d 11) (1999).

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