Pearson v. State

593 S.E.2d 1, 265 Ga. App. 116, 2004 Fulton County D. Rep. 316, 2004 Ga. App. LEXIS 33

• Court: Court of Appeals of Georgia
• Decided: January 9, 2004
• Docket: A03A0090
• Status: Published

Opinion

ELDRIDGE, Judge.

By opinion dated November 17, 2003, Case No. S03G0564, the Supreme Court of Georgia reversed this Court’s opinion in the above-captioned case, Pearson v. State, 258 Ga. App. 651 (574 SE2d 820) (2002), with regard to ten indicted counts of possession of a firearm during the commission of a felony. Based on the notion that the “unit of prosecution” upon which the legislature intended to focus related to the victim rather than the felony being committed with the firearm, the Supreme Court held:

In Pearson, the Court of Appeals permitted ten possession offenses simply because there were ten predicate felonies. A proper analysis permits three possession charges based on the crimes committed against three separate victims, and two possession charges based on the crimes of burglary and motor vehicle hijacking. The remaining possession charges, predicated on multiple felonies committed against the victims, should have been merged.

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Decided January 9, 2004. John T. Strauss, for appellant. W. Kendall Wynne, Jr., District Attorney, Jeffrey L. Foster, Assistant District Attorney, for appellee.

So, our opinion is vacated, and the Supreme Court’s opinion is made the opinion of this Court. This case is remanded for resentencing as above-directed by the Supreme Court of Georgia.

Judgment reversed as to those counts that are to be merged as directed above. Judgment affirmed as to the remaining counts.

Johnson, P. J., and Mikell, J., concur.

State v. Marlowe, 277 Ga. 383, 387 (3) (589 SE2d 69) (2003).