Redding v. State

Court of Appeals of Georgia

Redding v. State

374 S.E.2d 339, 188 Ga. App. 805

CourtCourt of Appeals of Georgia

DecidedOctober 17, 1988

Docket76857

StatusPublished

Cited by8 cases

This text of 374 S.E.2d 339 (Redding v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Redding v. State, 374 S.E.2d 339, 188 Ga. App. 805 (Ga. Ct. App. 1988).

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Opinions

Banke, Presiding Judge.

The appellant was given consecutive sentences for armed robbery and aggravated battery after pleading guilty to both offenses. On appeal, he contends that the court was not authorized to sentence him for both offenses because they were established by the same conduct. Held:

One crime is included in another as a matter of fact if it is established by proof of the same or less than all of the facts used to prove the other. See OCGA § 16-1-6 (1). A defendant may be tried for both offenses under such circumstances but may not be convicted of both. See OCGA § 16-1-7 (a) (1). See generally State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974). This right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant’s entry of a guilty plea or by his failure to assert it in the trial court. See Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974); McClure v. State, 179 Ga. App. 245 (345 SE2d 922) (1986).

It is clear from the indictment and from the transcript of the guilty plea hearing in the present case that the appellant’s aggravated assault conviction was based on the identical acts of violence through which he effected the taking of the victim’s money. Compare Coaxum v. State, 146 Ga. App. 370 (3) (246 SE2d 403) (1978) (where the aggravated assault conviction was based on violent acts which were “gratuitous and unconnected with the theft of the victim’s money”). Thus, while it was possible to prove the aggravated battery without establishing all of the conduct needed to prove the armed robbery, it was not possible to prove the armed robbery without simultaneously establishing all of the conduct upon which the aggravated battery conviction was predicated. It follows that the aggravated battery merged with the greater offense of armed robbery, and the sentence imposed for the aggravated battery is consequently vacated. Accord Hizine v. State, 148 Ga. App. 375 (1) (251 SE2d 393) (1978). See also Hambrick v. State, 256 Ga. 148 (4) (344 SE2d 639) (1986); Moreland [806]*806v. State, 183 Ga. App. 113, 115 (1) (358 SE2d 276) (1987); Luke v. State, 171 Ga. App. 201 (2) (318 SE2d 833) (1984). The conviction and sentence for armed robbery are, however, affirmed.

Judgment affirmed in part and vacated in part.

Birdsong, C. J., McMurray, P. J., Sognier, and Benham, JJ., concur. Deen, P. J., Carley, Pope, and Beasley, JJ., dissent.

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Banke, Presiding Judge.

The appellant was given consecutive sentences for armed robbery and aggravated battery after pleading guilty to both offenses. On appeal, he contends that the court was not authorized to sentence him for both offenses because they were established by the same conduct. Held:

One crime is included in another as a matter of fact if it is established by proof of the same or less than all of the facts used to prove the other. See OCGA § 16-1-6 (1). A defendant may be tried for both offenses under such circumstances but may not be convicted of both. See OCGA § 16-1-7 (a) (1). See generally State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475) (1974). This right to be free of multiple convictions for the same conduct has been referred to as the substantive bar against double jeopardy, and it is not waived either by the defendant’s entry of a guilty plea or by his failure to assert it in the trial court. See Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974); McClure v. State, 179 Ga. App. 245 (345 SE2d 922) (1986).

It is clear from the indictment and from the transcript of the guilty plea hearing in the present case that the appellant’s aggravated assault conviction was based on the identical acts of violence through which he effected the taking of the victim’s money. Compare Coaxum v. State, 146 Ga. App. 370 (3) (246 SE2d 403) (1978) (where the aggravated assault conviction was based on violent acts which were “gratuitous and unconnected with the theft of the victim’s money”). Thus, while it was possible to prove the aggravated battery without establishing all of the conduct needed to prove the armed robbery, it was not possible to prove the armed robbery without simultaneously establishing all of the conduct upon which the aggravated battery conviction was predicated. It follows that the aggravated battery merged with the greater offense of armed robbery, and the sentence imposed for the aggravated battery is consequently vacated. Accord Hizine v. State, 148 Ga. App. 375 (1) (251 SE2d 393) (1978). See also Hambrick v. State, 256 Ga. 148 (4) (344 SE2d 639) (1986); Moreland [806]*806v. State, 183 Ga. App. 113, 115 (1) (358 SE2d 276) (1987); Luke v. State, 171 Ga. App. 201 (2) (318 SE2d 833) (1984). The conviction and sentence for armed robbery are, however, affirmed.

Judgment affirmed in part and vacated in part.

Birdsong, C. J., McMurray, P. J., Sognier, and Benham, JJ., concur. Deen, P. J., Carley, Pope, and Beasley, JJ., dissent.

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374 S.E.2d 339, 188 Ga. App. 805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redding-v-state-gactapp-1988.

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