Southwell v. State
320 Ga. App. 763
Ga. Ct. App.2013Background
- Southwell, proceeding pro se, appeals the denial of his motion to modify sentence after pleading guilty to robbery by intimidation and felony theft by taking.
- He contends the prosecutions for the two crimes violated substantive double jeopardy and should have merged for sentencing.
- He also asserts trial counsel was ineffective for not raising the merger/double jeopardy objection below.
- Georgia’s double jeopardy framework here uses OCGA § 16-1-7, which is broader than constitutional double jeopardy and governs multiple convictions arising from the same conduct.
- The indictment charged robbery by intimidation (money from the victim in the immediate presence by threatening with a knife) and felony theft by taking (car theft).
- The trial court denied Southwell’s motion to modify, and the court affirmed the denial on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sentences violate double jeopardy/merger | Southwell argues the two offenses should merge and punishments should be limited. | State contends the crimes require proof of different facts; no merger applies. | No error; two offenses did not merge. |
| Whether trial counsel was ineffective for not raising the issue | Southwell claims ineffective assistance based on failure to raise merit issue. | State maintains issue lacked merit; no ineffective assistance. | Counsel not ineffective; issue meritless. |
Key Cases Cited
- Drinkard v. Walker, 281 Ga. 211 (2006) (required evidence test for inclusion of offenses)
- Blockburger v. United States, 284 U.S. 299 (1932) (two offenses can stand if each requires proof of a fact the other does not)
- Neslein v. State, 288 Ga. App. 234 (2007) (plea admits facts in an indictment)
- Elamin v. State, 293 Ga. App. 591 (2008) (aggravated assault and robbery by intimidation do not merge when evidence differs)
- Johnson v. State, 195 Ga. App. 56 (1990) (robbery by intimidation is a lesser included offense of armed robbery)
- Lancaster v. State, 281 Ga. App. 752 (2006) (evidence of firearm robbery can authorize armed robbery and robbery by intimidation)