Myrick v. State
325 Ga. App. 607
Ga. Ct. App.2014Background
- Defendant Herbert Wesley Myrick pled guilty to multiple charges including aggravated assault, aggravated stalking, battery, and violation of a limited driving permit.
- Trial court sentenced Myrick to a total of 20 years, with 3 years to serve in confinement and the remainder on probation; one aggravated assault count was merged for sentencing.
- Myrick timely filed a motion to modify his sentence within one year; the trial court denied the motion.
- Proceeding pro se, Myrick appealed the denial of his motion to modify sentence.
- He argued (1) the trial court should have applied the rule of lenity to reduce his sentence because aggravated assault and aggravated stalking allegedly overlap, and (2) the judge’s signature on the denial order was fraudulent/caused a procedural defect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the rule of lenity required a reduced sentence because aggravated assault and aggravated stalking punish the same conduct | Myrick: statutes overlap and any ambiguity must be construed in his favor | State: statutes address different conduct; no ambiguity exists | Court: No. Statutes are distinct; lenity does not apply |
| Whether the trial court’s order denying modification is void or defective due to an allegedly fraudulent/different judicial signature | Myrick: signature differs from other orders, making the order procedurally defective | State: record shows no basis for fraud claim; order valid | Court: No merit; signature claim fails and provides no basis for reversal |
Key Cases Cited
- White v. State, 319 Ga. App. 530 (rule of lenity applies where overlapping penal clauses create uncertainty)
- Daniels v. State, 320 Ga. App. 340 (discussing lenity and sentencing)
- Lightning v. State, 297 Ga. App. 54 (lenity does not apply when statutory provisions are unambiguous)
- Lee v. State, 320 Ga. App. 573 (definition and proof of aggravated assault)
- Reed v. State, 309 Ga. App. 183 (definition and proof of aggravated stalking)
- Rooney v. State, 318 Ga. App. 385 (court may correct or reduce sentence within one year under OCGA § 17-10-1(f))
- Bradberry v. State, 315 Ga. App. 434 (order denying timely sentence-modification motion is directly appealable)