                              SECOND DIVISION
                                 RAY, P. J.,
                           ANDREWS and DOYLE, JJ.

                    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 13, 2017




In the Court of Appeals of Georgia
 A17A0999. HENRY v. THE STATE.                                                DO-034 C

      DOYLE, Judge.

      After a jury trial, Timothy Henry was convicted of two counts of aggravated

child molestation,1 two counts of aggravated sodomy,2 and one count of child

molestation.3 This Court affirmed the conviction on appeal.4 Henry filed a motion to

correct a void sentence, which motion the trial court denied. Henry appeals, and we

vacate Henry’s sentence and remand the case for resentencing.




      1
          OCGA § 16-6-4 (c).
      2
          OCGA § 16-6-2 (a) (2).
      3
          OCGA § 16-6-4 (a) (1).
      4
          See Henry v. State, 316 Ga. App. 132 (729 SE2d 429) (2012).
      Although the record lacks a copy of the sentencing sheet, it is undisputed that

the trial court merged the two counts of aggravated child molestation into the two

counts of aggravated sodomy and sentenced Henry to two consecutive sentences of

life without parole. The trial court also sentenced Henry to twenty years

imprisonment for the child molestation count, which the court ran consecutive to the

two consecutive life sentences.

      1. Henry first argues that the trial court improperly sentenced him to

consecutive life sentences without parole on the two counts of aggravated sodomy.

Henry is correct that under normal sentencing, a trial court may not impose a sentence

of life imprisonment without the possibility of parole unless the State sought the

death penalty in the case.5 Nevertheless, in the case of a recidivist offender in whose

prosecution the State has filed notice and certified copies of past convictions, such

a penalty may be imposed pursuant to OCGA § 17-10-7 (c),6 which holds that

      [barring certain exceptions], any person who, after having been
      convicted under the laws of this state for three felonies or having been
      convicted under the laws of any other state or of the United States of


      5
          See, e.g., Velazquez v. State, 283 Ga. App. 863 (643 SE2d 291) (2007).
      6
      See State v. Jones, 253 Ga. App. 630, 632, n.2 (560 SE2d 112) (2002).
Compare with Velazquez, 283 Ga. App. at 863-864.

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      three crimes which if committed within this state would be felonies,
      commits a felony within this state shall, upon conviction for such fourth
      offense or for subsequent offenses, serve the maximum time provided
      in the sentence of the judge based upon such conviction and shall not be
      eligible for parole until the maximum sentence has been served.


Thus, like in State v. Jones, this sentence was proper

      because [under] OCGA § 16-6-2 (b), the maximum punishment for
      aggravated sodomy is life in prison[, and] OCGA § 17-10-7 (a)
      require[d] that the trial court sentence [Henry] — a [four]-time recidivist
      — to the maximum sentence. OCGA § 17-10-7 (c) require[d] that
      [Henry] — a [four]-time recidivist — actually serve the maximum
      sentence without the possibility of parole.7


      Accordingly, this argument is without merit.

      2. Henry also argues that the trial court improperly sentenced him to a 20-year

sentence of imprisonment for the child molestation count because the trial court was

required to sentence him to a split sentence “with at least one year of probation

included in each individual sentence.”8 The trial court failed to do this, and the State

concedes that Henry’s argument is correct. Accordingly, the trial court erred by



      7
          Jones, 253 Ga. App. at 632, n.2.
      8
          New v. State, 327 Ga. App. 87, 107-108 (5) (755 SE2d 568) (2014).

                                             3
denying Henry’s motion to correct a void sentence, and the sentencing order is hereby

vacated, and the case is remanded for resentencing.

      Sentence vacated and case remanded with direction. Ray, P. J., and Andrews,

J., concur.




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