In 1994, appellee Frederick Slaughter was convicted of numerous felonies, including armed robbery, attempted murder, and possession of a firearm by a convicted felon, stemming from a 1993 bank robbery in Douglas County. Appellee was sentenced as a recidivist to life in prison and a number of years to serve consecutively, all without parole. Since the prosecutor used appellee’s three prior felony convictions to prove the charge of possession of a firearm by a convicted felon under OCGA § 16-11-131, appellee filed a motion alleging his sentence was void because his prior convictions were also used to enhance his sentence under OCGA § 17-10-7 (c). Appellee argued that at least one of his three prior convictions had been “used up” on the firearm possession conviction pursuant to
King v. State,
*345
In
King,
supra, the Court of Appeals sought to answer the following issue of first impression: “. . . whether the state can use the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the repeat offender statute.”
[i]f the General Assembly intended that repeat offender punishment [pursuant to OCGA § 17-10-7 (a)] be applied to possession of a firearm by a convicted felon, then every conviction for that offense could result in a minimum punishment of five years, thus rendering the authorized punishment for the offense of one to five years meaningless.
King,
supra,
Thus, King’s single prior felony conviction for motor vehicle theft could not be used by the prosecution to convict him under OCGA § 16-11-131 and to enhance his sentence for said conviction under OCGA § 17-10-7 (a). Therefore, King is applicable in those situations where the defendant has one prior felony conviction and, in a subsequent prosecution, he is convicted of firearm possession by a convicted felon. In such situations, the application of OCGA § 17-10-7 (a) eviscerates the sentencing range of one to five years set forth in OCGA § 16-11-131 because the trial court is forced to impose a five-year sentence.
In contrast, the application of OCGA § 17-10-7 (c) to a defendant who has three prior convictions and, in a subsequent prosecution, is convicted for firearm possession by a convicted felon does not eviscerate the sentencing range set forth in OCGA § 16-11-131. Rather, in that subsection of OCGA § 17-10-7, the trial court still has discretion to sentence a defendant to up to five years for felony firearm possession by a convicted felon.
Blevins v. State,
Judgment reversed.
Notes
OCGA § 17-10-7 (c) provides:
Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would he felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
OCGA § 17-10-7 (a) states:
Except as otherwise provided in subsection Ob) of this Code section, any person convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall he sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.
To the extent
Campbell v. State,
Morrison v. State,