Willie Dobbs v. State

• Court: Court of Appeals of Georgia
• Decided: April 26, 2021
• Docket: A20A0738
• Status: Published

Opinion

THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.

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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April 26, 2021

In the Court of Appeals of Georgia A20A0738. DOBBS v. THE STATE.

MCFADDEN, Chief Judge.

In Dobbs v. State, 355 Ga. App. 357 (843 SE2d 437) (2020), we affirmed

Willie Dobbs’s convictions for several offenses related to a shooting, but we vacated

his sentence and remanded the case for resentencing because the trial court had not

properly merged certain of his convictions for sentencing purposes. Pertinently, we

held in Division 3 (b) that the trial court should have merged his attempted murder

conviction into his aggravated battery convictions. Id. at 360 (3) (b). We based that

holding on our precedent in Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733)

(2015) and Hernandez v. State, 317 Ga. App. 845 (733 SE2d 30) (2012).

The next month, our Supreme Court overruled Hernandez and Zamudio, as

well as our decision this case, holding that, when those two crimes are predicated on the same conduct, the offense of aggravated battery merges into the offense of

attempted murder. Priester v. State, 309 Ga. 330 (845 SE2d 683) (2020). The

controlling principle is that the lesser offense merges into the greater. Which offense

is greater, Priester holds, is a policy choice; and the General Assembly made that

choice by assigning attempted murder the more severe penalty. Id. at 334–335 (3).

Thereafter our Supreme Court granted certiorari in this case, vacated our

decision, and remanded to this court for reconsideration in light of Priester. State v.

Dobbs, 2020 Ga. LEXIS 861 (2020).

In light of Priester, we vacate Division 3 (b) of our earlier opinion. In its place,

we hold that, because Dobbs’s aggravated battery and attempted murder convictions

were predicated on the same conduct, the trial court must merge the aggravated

battery convictions into the attempted murder conviction for sentencing purposes. See

Priester, 309 Ga. at 335 (3).

The Supreme Court neither addressed nor considered the other divisions of our

opinion in Dobbs v. State: Division 1, which was a factual recitation, 355 Ga. App.

at 357-358 (1); Division 2, which held that the trial court did not improperly express

her opinion on the evidence to the jury, id. at 358-359 (2); and Division 3 (a), which

held that Dobbs’s two aggravated battery convictions must be merged for sentencing

2 purposes, id. at 359-360 (3) (a). See Priester, 309 Ga. 330. Because those divisions

are not inconsistent with the Supreme Court’s opinion in Priester, they “bec[a]me

binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563

(1) (554 SE2d 465) (2001).

Judgment affirmed, sentence vacated, and case remanded for resentencing.

Doyle, P. J., and Hodges, J., concur.