Tindell v. State, 314 Ga. App. 91

Hedden v. State (2011) reversed this Court's Hedden ruling, allowing sentencing discretion under OCGA 17-10-6.2(c)(1).
OCGA 17-10-6.2(c)(1) permits deviation from the mandatory minimum if specified conditions exist, including that the victim was not physically restrained during the offense (F).
Tindell pleaded guilty to sexual exploitation of children involving digital images/videos; one video showed a child restrained during sexual acts (Count 1).
The trial court treated the restrained-victim finding as foreclosing any downward departure, applying OCGA 17-10-6.2(c)(1)(F).
This Court previously followed Hedden (2010) and affirmed the trial court; after Hedden (2011), the matter is remanded for resentencing in light of new precedent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in denying a downward departure under OCGA 17-10-6.2(c)(1)	Tindell contends Hedden permits discretion to depart.	State argues (F) forecloses departure when a victim was restrained.	Yes, error; discretion exists; sentence vacated and remanded.

Hedden v. State, 288 Ga. 871 (2011) (reversed lower decision and held the court may deviate under §17-10-6.2(c)(1) despite images showing restraint)
Hedden v. State, 301 Ga.App. 854 (2010) (precedent controlling prior holding on absence of discretion)