Steven Garibay v. State

• Court: Court of Appeals of Georgia
• Decided: October 8, 2021
• Docket: A21A1804
• Status: Published

Opinion

FIFTH DIVISION RICKMAN, C. J., MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

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September 22, 2021

In the Court of Appeals of Georgia A21A1804. GARIBAY v. THE STATE.

MCFADDEN, Presiding Judge.

After a jury trial, Steven Garibay was convicted of the crime of failing to

register as a sex offender. The trial court sentenced Garibay to serve five years in

confinement and twenty-five years on probation. After the trial court denied

Garibay’s motion for new trial, he filed this appeal.

Garibay’s sole argument on appeal is that the trial court erred by sentencing

him as a recidivist under OCGA § 17-10-7 (a) and (c) because both subsections

cannot be applied to the same case and the subsections should not be read together.

He acknowledges that we have held that a trial court may apply both subsections, see,

e.g., Riley v. State, 356 Ga. App. 606, 615-616 (5) (848 SE2d 474) (2020), but he

urges us to overrule those cases. (He also acknowledges that our Supreme Court has held that “[a]ll of [the] subsections of OCGA § 17-10-7 must be read together.”

Blackwell v. State, 302 Ga. 820, 830 (4) (809 SE2d 727) (2018). We, of course, lack

authority to overrule our Supreme Court.)

The problem with Garibay’s argument is that he was not sentenced under both

subsections. The judgment of conviction shows that the trial court sentenced Garibay

as a recidivist only under OCGA § 17-10-7 (c):

So Garibay has not shown reversible error and we affirm.

Judgment affirmed. Rickman, C. J. , and Senior Appellate Judge Herbert E.

Phipps concur.