Dobbs v. State

359 Ga.App. 373

857 S.E.2d 829 (Mem)

DOBBS

v.The STATE.

A20A0738

Court of Appeals of Georgia.

April 26, 2021

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys, for appellee.

McFadden, Chief Judge.

In Dobbs v. State , 355 Ga. App. 357, 843 S.E.2d 437 (2020), we affirmed Willie Dobbs's convictions for several offenses related to a shooting, but we vacated his sentence and remanded the case for resentencing because the trial court had not properly merged certain of his convictions for sentencing purposes. Pertinently, we held in Division 3 (b) that the trial court should have merged his attempted murder conviction into his aggravated battery convictions. Id. at 360 (3) (b), 843 S.E.2d 437. We based that holding on our precedent in Zamudio v. State , 332 Ga. App. 37, 771 S.E.2d 733 (2015) and Hernandez v. State , 317 Ga. App. 845, 733 S.E.2d 30 (2012).

The next month, our Supreme Court overruled Hernandez and Zamudio , as well as our decision in this case, holding that, when those two crimes are predicated on the same conduct, the offense of aggravated battery merges into the offense of attempted murder. Priester v. State , 309 Ga. 330, 845 S.E.2d 683 (2020). The controlling principle is that the lesser offense merges into the greater. Which offense is greater, Priester holds, is a policy choice; and the General Assembly made that choice by assigning attempted murder the more severe penalty. Id. at 334–335 (3), 845 S.E.2d 683.

Thereafter our Supreme Court granted certiorari in this case, vacated our decision, and remanded to this court for reconsideration in light of Priester. State v. Dobbs , Case No. S20C1249 (Nov. 16, 2020).

In light of Priester , we vacate Division 3 (b) of our earlier opinion. In its place, we hold that, because Dobbs's aggravated battery and attempted murder convictions were predicated on the same conduct, the trial court must merge the aggravated battery convictions into the attempted murder conviction for sentencing purposes. See Priester , 309 Ga. at 335 (3), 845 S.E.2d 683.

The Supreme Court neither addressed nor considered the other divisions of our opinion in Dobbs v. State : Division 1, which was a factual recitation, 355 Ga. App. at 357-358 (1), 843 S.E.2d 437 ; Division 2, which held that the trial court did not improperly express her opinion on the evidence to the jury, id. at 358-359 (2), 843 S.E.2d 437 ; and Division 3 (a), which held that Dobbs's two aggravated battery convictions must be merged for sentencing purposes, id. at 359-360 (3) (a), 843 S.E.2d 437. See Priester , 309 Ga. 330, 845 S.E.2d 683. Because those divisions are not inconsistent with the Supreme Court's opinion in Priester , they "bec[a]me binding upon the return of the remittitur." Shadix v. Carroll County , 274 Ga. 560, 563 (1), 554 S.E.2d 465 (2001).

Judgment affirmed, sentence vacated, and case remanded for resentencing.

Doyle, P. J., and Hodges, J., concur.