Diaz v. State, 630 S.E.2d 618 (Ga. Ct. App. 2006). · Go Syfert
Diaz v. State, 630 S.E.2d 618 (Ga. Ct. App. 2006). Cases Citing This Book View Copy Cite
12 citation events (12 in the last 25 years) across 2 distinct courts.
Strongest positive: Matthew Scott Roberts v. State (gactapp, 2025-09-23)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Matthew Scott Roberts v. State
Ga. Ct. App. · 2025 · confidence medium
Dukes v. State, 311 Ga. 561, 572 (4) ( 858 SE2d 510 ) (2021); Murray, 314 Ga. App. at 241-242 ; Troutman v. State, 348 Ga. App. 375, 377 ( 823 SE2d 66 ) (2019) (physical precedent only) (defendant was not entitled to withdraw his guilty plea on three remaining counts after appellate determination that his aggravated assault conviction merged with his armed robbery conviction – only the aggravated assault conviction was vacated); Diaz v. State, 279 Ga. App. 134, 135-136 ( 630 SE2d 618 ) (2006) (following a guilty plea, trial court’s order vacating probated sentence for aggravated child mole…
discussed Cited as authority (rule) Ronald Leonard, Jr. v. State
Ga. Ct. App. · 2014 · confidence medium
McFadden and Boggs, JJ., concur. 5 Id. at 434-435 . 6 See Diaz v. State, 279 Ga. App. 134, 135-136 ( 630 SE2d 618 ) (2006) (voidness of one count does not affect remaining counts in indictment). 7 See OCGA § 16-8-41 (b) (1992) (“A person convicted of the offense of armed robbery shall be punished by . . . imprisonment for life or by imprisonment for not less than five nor more than 20 years. . . .”). 8 See Frazier, 302 Ga. App. at 347-348 . 4
discussed Cited as authority (rule) Ward v. State
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 Ward v. State, 242 Ga. App. 246 ( 529 SE2d 378 ) (2000). 2 King v. State, 295 Ga. App. 865, 865 (1) ( 673 SE2d 329 ) (2009). 3 Watts v. State, 261 Ga. App. 29 ( 581 SE2d 625 ) (2003). 4 Felder v. State, 274 Ga. 870, 871 ( 561 SE2d 88 ) (2002). 5 Jordan v. State, 253 Ga. App. 510, 511 (1) ( 559 SE2d 528 ) (2002). 6 Jones v. State, 278 Ga. 669, 670 ( 604 SE2d 483 ) (2004). 7 Brown v. State, 295 Ga. App. 66, 67 ( 670 SE2d 867 ) (2008). 8 Diaz v. State, 279 Ga. App. 134, 136 ( 630 SE2d 618 ) (2006). 9 Miller v. State, 264 Ga. App. 801, 804 (c) ( 592 SE2d 450 ) (2003…
discussed Cited "see" Leonard v. State (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Diaz v. State, 279 Ga. App. 134, 135-136 ( 630 SE2d 618 ) (2006) (voidness of one count does not affect remaining counts in indictment).
DIAZ
v.
State
A06A0338.
Court of Appeals of Georgia.
Apr 27, 2006.
630 S.E.2d 618
2006 Ga. App. LEXIS 470
Stephen F. Mackie, for appellant., Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.
Ellington.
Cited by 6 opinions  |  Published
Ellington, Judge.

Hector Diaz appeals from the trial court’s denial of his motion to withdraw his guilty plea to rape, OCGA§ 16-6-1. Findingno error, we affirm.

The record shows the following undisputed facts. A Gwinnett County grand jury indicted Diaz for aggravated child molestation, OCGA § 16-6-4 (c); rape, OCGA § 16-6-1; child molestation, OCGA § 16-6-4 (a); and incest, OCGA § 16-6-22. Diaz entered negotiated guilty pleas on the aggravated child molestation and rape charges, and the court sentenced him to 20 years to serve on the rape conviction and a consecutive term of 20 years of probation on the aggravated child molestation conviction.* [1]

In January 2005, the office of the Attorney General of the State of Georgia notified the district attorney’s office that the sentence of twenty years on probation for the aggravated child molestation was void because it failed to comply with OCGA § 17-10-6.1 (b), which requires a minimum sentence of ten years to serve in prison for aggravated child molestation. Following a resentencing hearing, the[*135] trial court vacated the sentence on the aggravated child molestation conviction and entered a nolle prosequi on the charge. The court’s order specifically stated that it did not affect the 20-year sentence on the rape.[2] Diaz then filed a motion to withdraw his guilty plea on the rape charge, contending that since his sentence on the aggravated child molestation was void, his sentence on the rape conviction, entered at the same time, was void also. Diaz argued that, because there was no valid sentence on the rape charge, he had an absolute right to withdraw his guilty plea before resentencing. See OCGA § 17-7-93 (b) (a defendant may withdraw his guilty plea before judgment is pronounced). The trial court denied Diaz’s motion, and Diaz appeals.

On appeal, Diaz relies upon State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978), for the proposition that if a defendant pleads guilty to two counts of an indictment and is sentenced for both, and then one of the sentences is later deemed void, the other sentence is automatically void. Stuckey, however, does not stand for that proposition and is distinguishable on the facts from the instant case. In Stuckey, the defendant pled guilty to armed robbery and aggravated assault, and the court sentenced him to five years on probation. Id. The sentence was apparently intended to cover both crimes in the aggregate, although this Court’s opinion is unclear on the issue. Id. After determining that the applicable sentencing statute did not allow for a probated sentence for armed robbery, the State moved to amend the sentence. Id. The trial court refused to amend the sentence, and the State appealed. Id. This Court ruled that the probated sentence for armed robbery was void and remanded the case to the trial court for resentencing. Id. at 434-435. Notably, this Court’s ruling is silent as to the aggravated assault conviction or any sentence thereon. Id.

In contrast to the facts in Stuckey, the record in this case shows that the trial court imposed a separate and distinct sentence for each of the two counts of the indictment, aggravated child molestation and rape, with the sentences to run consecutively. The trial court’s order vacating the probated sentence for aggravated child molestation specifically stated that the order did not affect the rape sentence. Diaz has not shown any basis for finding the 20-year sentence for rape was illegal or void, other than his misplaced reliance on Stuckey.

Under the circumstances, we see no basis for finding that Diaz’s sentence on the rape conviction was void. See Reynolds v. State, 272 Ga. App. 91, 94 (2) (611 SE2d 750) (2005) (a sentence is void if it[*136] imposes punishment that the law does not allow, and as long as the sentence falls within statutory guidelines, it is not void). Therefore, Diaz did not have the right to withdraw his guilty plea to the rape charge prior to resentencing on that charge. See State v. Smith, 193 Ga. App. 831, 832 (1) (389 SE2d 547) (1989) (after the trial court improperly merged eight counts of armed robbery into other counts for sentencing, the case was remanded for resentencing on those eight counts only; this Court did not find that the other sentences were void). Cf. Crews v. State, 142 Ga. App. 319, 322 (8) (235 SE2d 756) (1977) (trial court sentenced defendant in the aggregate on multiple counts; when defendant’s conviction on one count was reversed on appeal, resentencing was required on the remaining counts).

Decided April 27, 2006 Stephen F. Mackie, for appellant. Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.
1

The trial court entered a nolle prosequi on the remaining charges.

2

It is undisputed that the 20-year sentence for the rape conviction does not violate a sentencing or other statute.