STROZIER v. THE STATE (Two Cases)

306 Ga. 169

• Court: Supreme Court of Georgia
• Decided: June 10, 2019
• Docket: S19A0790, S19A0907
• Status: Published

Opinion

306 Ga. 169 FINAL COPY

S19A0790. STROZIER v. THE STATE. S19A0907. ANTHONY v. THE STATE.

ELLINGTON, Justice.

A jury found Johnathan Anthony and Jekari Strozier guilty of

a variety of crimes, including felony murder. On appeal, we held that

“the trial court properly convicted [the] appellants of felony murder

predicated upon unlawful participation in criminal gang activity

through the commission of a simple battery [Count 4].” (Citation

omitted.) Anthony v. State, 303 Ga. 399, 403 (2) (a) (811 SE2d 399)

(2018). We also held that the jury’s verdicts as to voluntary

manslaughter (Count 1) and the other felony murder counts (Counts

2, 3, 5-7) were vacated by operation of law. Id. at 399 n.1. We

explained that,

[o]n the facts presented in this case, the offenses of unlawful participation in criminal gang activity through the commission of an aggravated assault [Count 12] and unlawful participation in criminal gang activity through the commission of an aggravated battery [Count 13] merge with the offense of unlawful participation in criminal gang activity through the commission of a simple battery [Count 10], which formed the basis for — and properly was merged into — the felony murder of which the appellants were convicted and sentenced.

Id. at 405 (2) (b). Finally, we held that the evidence was insufficient

as to Count 11 (affray) and so we reversed that conviction. Id. at 401

(1). After explaining in detail how the convictions on Counts 1-3 and

5-13 had been either merged, vacated, or reversed, we affirmed the

appellants’ convictions as to the Count 4 felony murder only. We did

not remand these cases to the trial court for resentencing. When the

cases returned to the trial court, all the court was required to do was

to file the remittiturs.

Instead, upon the return of the remittiturs, the trial court, at

the urging of the prosecutor, entered an “Amended Sentence

Pursuant to Supreme Court Decision” for each defendant. The court

sentenced Strozier and Anthony to life imprisonment for felony

murder predicated on aggravated battery (Count 3, one of the felony

murder convictions that had been vacated by operation of law) and

to 15 years imprisonment for criminal gang activity (Count 13,

2 aggravated battery, one of the predicate offenses that we held had

merged into Count 10, which, in turn, had been merged into Count

4). The trial court directed a verdict of not guilty on Count 11 and

noted that the remaining counts either merged or had been vacated.

The appellants contend, and the State concedes, that the trial court’s

resentencing orders violate the law of the case rule.

Georgia’s statutory law of the case rule provides that holdings

of the Supreme Court in a case shall be binding in all subsequent

proceedings in that case in the lower court. OCGA § 9-11-60 (h). It

is well established that this rule applies to our holdings in criminal

cases. See, e.g., McDonald v. State, 305 Ga. 5, 6 (1) (823 SE2d 280)

(2019); Roulain v. Martin, 266 Ga. 353, 354 (1) (466 SE2d 837)

(1996). In Anthony, we affirmed the appellants’ sentences as to

Count 4 only. Because the trial court was precluded from revising

that holding, the amended sentencing orders are nullities that did

not supersede the sentencing orders already reviewed by this Court.

See Hollmon v. State, 305 Ga. 90, 91 (1) (823 SE2d 771) (2019) (The

trial court lacked authority to “resentence” the defendant on felony

3 murder and criminal attempt convictions previously vacated by

operation of law.). Therefore, the appellants’ sentences as to Count

4 remain in effect.

Judgments vacated. All the Justices concur.

Decided June 10, 2019.

Murder. Cobb Superior Court. Before Judge Grubbs, Senior

Judge.

Jones, Morrison & Womack, Wallace C. Clayton II, for

appellant (case no. S19A0790).

Matthew K. Winchester, Jason M. McLendon, for appellant

(case no. S19A0907).

John S. Melvin, District Attorney, Jesse D. Evans, John R.

Edwards, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General,

4 Vanessa T. Sassano, Assistant Attorney General, for appellee.