Background

• McNair was charged with identity fraud for possessing a financial-transaction-card number without authorization and with intent to fraudulently use it.
• At trial, the State argued McNair committed identity fraud; McNair contended lenity required sentencing under the lesser financial-transaction-card theft statute.
• The trial court sentenced under identity fraud; on appeal, this Court affirmed based on pre-Supreme Court law limiting lenity to misdemeanor/felony contrasts.
• The Georgia Supreme Court granted certiorari and reversed, holding lenity applies when identical conduct could support two crimes with different penalties.
• Under the particular facts, McNair’s conduct could be charged under both statutes; the Court held lenity requires sentencing under the lesser statute and remanded for resentencing.
• Decided March 25, 2014; judgment reversed and remanded for resentencing under the financial-transaction-card theft statute.

Issues

Key Cases Cited

• Dixon v. State, 278 Ga. 4 (Ga. 2004) (lenity applied when same conduct supported two offenses with different punishments)
• Banta v. State, 281 Ga. 615 (Ga. 2007) (two statutes define different offenses; no lenity when none ambiguity)
• Washington v. State, 283 Ga. App. 570 (Ga. App. 2007) (lenity when same evidence could prove two offenses with different grades)
• Dawkins v. State, 278 Ga. App. 343 (Ga. App. 2006) (lenity under overlapping felony/misdemeanor scenarios)
• McNair v. State, 293 Ga. 282 (Ga. 2013) (discusses lenity applicability to this case)
• United States v. Lanier, 520 U.S. 259 (U.S. 1997) (lenity rooted in vagueness doctrine; fair warning)
• Shabani v. United States, 513 U.S. 10 (U.S. 1994) (lenity applies when statute ambiguity remains after construction)