Redding v. State
188 Ga. App. 805
Ga. Ct. App.
1988
Check Treatment

*1 805 8 198 1988 denied October Timmons, Jr., John W. for Handley, Kintz, Graham,

Gerald F. Peter K. Scott REDDING THE (374 Banke, appellant given robbery was consecutive sentences for armed aggravated battery pleading guilty ap- after to both offenses. On peal, he contends that the court was not authorized to him same conduct. sentence they for both offenses because established One crime is another as a matter of fact if it is estab by proof prove lished same or less than all the facts used to (1). may the other. See OCGA A be tried for both offenses under such circumstances but not be convicted of both. (a) (1). generally See OCGA 16-1-7 State v. multiple This to be free of con victions for the same has conduct been referred to as the substantive jeopardy, bar and it is not waived either the de entry fendant’s aof failure to assert it Blackledge (94 court. See U. S. SC 40 LE2d 628) (1974); transcript It is clear from the from indictment and guilty plea hearing present appellant’s aggravated case that the through assault conviction was based on the identical acts violence money. Compare which he effected of the victim’s Coaxum (3) 403) (1978) (where ag- gravated assault conviction was based on violent acts which were “gratuitous money”). and unconnected with the theft of the victim’s possible prove Thus, while it was without establishing prove conduct needed the armed possible prove robbery simultaneously without establishing aggravated battery aggravated battery all of the conduct which the predicated. conviction was It follows that merged greater offense of armed imposed aggravated battery consequently vacated. Accord Hizine v. (4) Moreland Luke The conviction however, are, affirmed. and sentence J.,C. part. Birdsong, Judgment and vacated part affirmed J., Benham, Deen, JJ., P. J., concur. Sognier, and McMurray, P. JJ., Carley, Pope, *2 Judge, dissenting. appeal. first on time ruled on is raised question The to on both authority challenged the court’s

Defendant never counts, court though even the counts, he to both when what the maximum on each and made clear that would sentence his withdrawn crimes. He could have sentence was for each of the two time, prior him a as the court advised as matter at aside Nor defendant seek to set 17-7-93. did sentencing. to OCGA § now battery charge, as he on or vacate the sentence the demands. question and opportunity to consider the trial court had posture, In review. ruling

thus made no thereon for us to 1983, VI, ripe Art. Sec. question not for determination. Ga. Const. is (2) (314 202) State, V, Ill; Par. Gardiner v. 252 Ga. SE2d represented App. in Scott 172 Ga. As 565) (1984): having been raised question] not “[This court, in this passed upon nothing presented is for review Court.” opinion meet or resolve majority

Neither of cases cited them, In as as Clark procedural this State, both of well crucial defect. a relied on case majority-cited case of being re- ruling the lower court had made a which ma- appellate here. The

viewed court. That is what is absent jority has not review of a lower court original ruling, undertaken an a ruling. us, re- if the before it should be Even imposing two judgment

solved affirmance of the trial court’s sentences, a as matter of law and as because there were two crimes a matter fact. principle is vio- aspect jeopardy substantive of the double (construed than if to sentence rather

lated one is convicted to it, is precedes prohibition its conviction which because same criminal punishment) arising crimes from the of two conduct. State 16-1-6; there, included one crime

OCGA 16-1-7. As shown §§ fact. in another as a of law or as a matter of matter (a), Aggravated battery, OCGA 16-5-24 (a), OCGA a as matter law because at aggra- case, least one element is different. As relates to law of this battery requires bodily “maliciously causing vated harm another to seriously body disfiguring . . . . . . .” Armed on the require bodily only injury taking hand, other does not but property “by weapon.” from another use an offensive The “use” may robbery. inflicting bodily injury fall short of still constitute armed (2) (327 See Evans v. requires property, This latter crime which is not McCulligh an App. element of 717, 721 Jackson v. (1982), distinguishes which simple battery robbery. elements in and armed Under here, the indictment and admitted facts crimes are separate robbery indictment, as matter as of fact well. As charged property by

count that defendant took use board inflict wounds the victim’s head and face. The charged disfigured body by count that defendant the victim’s hitting permanent him with the so as board to cause scars his head. depends wording pointed indictment, Much on the (1978), in Coaxum v. specific charged is the indictment which delineates acts as crimes. appellate *3 cognizant importance That the courts are of the of this as pect appears majority-cited of the also cases of Hizine v. State, 256 Ga. 148 and Luke v. Harvey Ga. Ga. charging separate course, Of addition to the indictment acts as separate proving up” crimes, the evidence of one act not be “used in charges Haynes merge. crime, the other else the two will (2) § OCGA 16-1-6 Defendant admitted he hit the victim twice. He first hit him from intending just grab purse, behind, out, knock him and run. completion battery, This constituted of the elements present, conformity charge. were then away in Had defendant run point, up at that his action still would have made the crime of But defendant went in further his actions. When the initial blow unconscious, the head did not render the victim and he turned fight assailant, around to defendant hit him the face with This occurred fracturing eye. board, the facial bones around the after the first blow and after defendant demanded and the victim re- money, fused the which occurred the two As a between blows. result purse money blow, of the second fell and defendant lifted the own words the defendant’s of events is sequence ran. This of and reported. officer investigating confirms and what same up made of charge was not Thus As in State battery charge. as the facts Harvey Lambert only one such as would allow merger of offenses supra, there was for both acts. sentence, punished could Judge Deen and Presiding Judge I authorized to state am in Division Carley Judge concurs Pope join this dissent and that this 19, 198 October dismissed Mims, B. Larry Attorney, E. District

David v. THE

77028. GREER

(374 SE2d

McMurray, appeals burglary. Defendant his conviction of the offense error raise an issue Defendant’s first two enumerations of permitting to learn that de- whether the trial court erred upon guilty burglary to the same offense fendant’s co-indictee challenge the admis- which defendant was tried. enumerations thereon, plea, comments sion evidence as to the co-indictee’s before the indict- the trial court’s refusal to “redact” the indictment jury. ment was sent out inadmissibility regard “rule with acknowledged

We have cases which non-testifying guilty plea. co-indictee’s and, inadmissibility rely language rule of of OCGA upon incompetency irrelevancy of that consequent based trial, guilt hold that cannot proof defendant on Foster ‘against’ him. be used as substantive evidence [Cits.]” 745). inapplica- OCGA 24-3-52 is *4 took the and was judice ble the case sub since the co-indictee stand attorney. Lattimore v. subject to cross-examination defendant’s 701); Jones v. 485). Also, was instructed Ga. since the co-indictee’s was not to be used evidence Foster v. guilt there was defendant’s no error. See 478, 480, 481, Furthermore, questions leading the trial court’s prohibited comment on the to the co-indictee did not amount to a