Court of Appeals
of the State of Georgia

                                         ATLANTA,____________________
                                                    May 04, 2016

The Court of Appeals hereby passes the following order:

A16D0342. MARK MCGARITY, SR. v. THE STATE.

      Mark McGarity, Sr., seeks discretionary review of the trial court’s order
denying his motion for sentence modification. A sentencing court may modify a
sentence within one year of its imposition or within 120 days after remittitur
following a direct appeal, whichever is later. See OCGA § 17-10-1 (f); Frazier v.
State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010). The denial of a timely
motion to modify under OCGA § 17-10-1 (f) is subject to direct appeal. See, e. g.,
Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260
Ga. App. 580 (580 SE2d 330) (2003).
      This Court will grant a timely discretionary application if the lower court’s
order is subject to direct appeal. See OCGA § 5-6-35 (j). From the limited application
material submitted, it appears the order at issue is subject to direct appeal.1
Accordingly, this application is hereby GRANTED. McGarity shall have ten days
from the date of this order to file a notice of appeal with the trial court if he has not
already done so. See OCGA § 5-6-35 (g). The clerk of the superior court is directed
to include a copy of this order in the record transmitted to the Court of Appeals.




      1
       McGarity has included information indicating he was sentenced on March 30,
2015. Although McGarity did not include a copy of his motion for sentence
modification, the trial court denied the motion on March 17, 2016. Thus, the motion
was necessarily filed within one year of sentencing.
Court of Appeals of the State of Georgia
                                     05/04/2016
       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.
