Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                  November 15, 2016

The Court of Appeals hereby passes the following order:

A17D0145. ROBERT JAY DAVIS v. THE STATE.

      In January 2014, a jury found Robert Jay Davis guilty of one count of
aggravated stalking, and the superior court sentenced him to serve ten years in prison
as a recidivist. We affirmed his judgment of conviction in an unpublished opinion
on direct appeal. Davis v. State, No. A15A0305 (July 10, 2015). The Supreme Court
of Georgia thereafter denied Davis’s request for certiorari review, remitted the case
to this Court, and our remittitur issued to the superior court on November 6, 2015.
      In the interim, Davis filed a motion to reduce sentence in the superior court in
October 2015. The superior court initially denied the motion on November 3, 2015.
Davis appealed, and, in another unpublished opinion, we vacated and remanded on
the ground that the superior court lacked jurisdiction to rule on Davis’s motion before
our remittitur issued in his direct appeal. Davis v. State, No. A16A0838 (Aug. 18,
2016). On remand, the superior court again denied Davis’s motion, and he filed this
timely application for discretionary 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, 348 (691 SE2d 247)
(2010). The denial of a timely motion to modify under § 17-10-1 (f) is subject to
direct appeal. See Bowen v. State, 307 Ga. App. 204 (704 SE2d 436) (2010);
Anderson v. State, 290 Ga. App. 890 (660 SE2d 876) (2008); Maldonado v. State, 260
Ga. App. 580 (580 SE2d 330) (2003). Davis’s motion was timely under § 17-10-1
(f), as it was filed within 120 days of our remittitur following his direct appeal.
      Under OCGA § 5-6-35 (j), this Court will grant a timely discretionary
application if the lower court’s order is subject to direct appeal. Accordingly, this
application is hereby GRANTED. Davis shall have ten days from the date of this
order to file a notice of appeal with the superior court, if he has not already done so.
The clerk of the superior court is DIRECTED to include a copy of this order in the
record transmitted to the Court of Appeals.

                                        Court of Appeals of the State of Georgia
                                                                             11/15/2016
                                               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.
