Court of Appeals
of the State of Georgia

                                       ATLANTA,____________________
                                                 December 23, 2015

The Court of Appeals hereby passes the following order:

A16A0491. CHARLES D. HARRELL v. THE STATE.

      Charles D. Harrell pled guilty to numerous counts of theft by taking, and the
trial court sentenced him to serve ten years on probation. In November 2013, the trial
court entered an order revoking four years of probation based upon the commission
of new felonies. On September 1, 2015, Harrell filed a motion to correct an illegal
sentence, arguing that, because the prosecutor had entered orders of nolle prosequi
on the new felonies, the trial court was limited to revoking only two years of
probation. The trial court denied the motion, and Harrell filed this direct appeal.
      Under OCGA § 17-10-1 (f), a court 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. App. 346, 347-348 (691 SE2d 247)
(2010); Burg v. State, 297 Ga. App. 118, 118 (676 SE2d 465) (2009). Once this
statutory period expires, a trial court may modify a sentence only if it is void. See
Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). And a sentence is void only
if it imposes punishment that the law does not allow. Von Thomas v. State, 293 Ga.
569, 571 (748 SE2d 446) (2013). A challenge to the predicate facts underlying a
sentence does not constitute a valid void sentence claim. See id.; Kimbrough v. State,
325 Ga. App. 519, 522 (1) (754 SE2d 109) (2014).
      Here, Harrell’s claim that the entry of nolle prosequi invalidates his sentence
following the revocation of his probation is a challenge to a factual predicate.
Accordingly, he has not raised a valid void sentence claim, and this appeal is hereby
DISMISSED.1

                                       Court of Appeals of the State of Georgia
                                                                            12/23/2015
                                              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.




      1
        Further, to the extent that Harrell’s motion may be construed as a challenge
to the revocation of his probation, his failure to comply with discretionary appeal
procedure deprives us of jurisdiction. See OCGA § 5-6-35 (a) (5); White v. State, 233
Ga. App. 873 (505 SE2d 228) (1998).
