Busch v. State

• Court: Supreme Court of Georgia
• Citation: 523 S.E.2d 21,271 Ga. 591
• Docket Number: No. S99G0246.,S99G0246.
• Parties: BUSCH v. The STATE.
• Decision Date: 01 November 1999

523 S.E.2d 21
271 Ga. 591

BUSCH
v.
The STATE

No. S99G0246.

Supreme Court of Georgia.

November 1, 1999.

523 S.E.2d 22

L. Elizabeth Lane, Macon, for appellant

Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

SEARS, Justice.

We granted certiorari in this case to consider whether the trial court has discretion to impose concurrent sentences for multiple convictions under OCGA § 16-11-106(b).¹ The appellant, Samuel Busch, was convicted for, among other things, seven counts of aggravated assault, five counts of armed robbery, and seven counts of possession of a firearm during the commission of a crime (the possession offenses were Counts 5, 6, 9, 13, 16, 19, and 21 of the indictment). The various counts of the indictment stemmed from five separate incidents, and two of those incidents involved two different victims. Pursuant to OCGA § 16-11-106(b), the trial court sentenced Busch to five-year sentences for each of the possession offenses, with each five-year sentence to run consecutively to the sentences for the other possession offenses and to life sentences imposed on two armed robbery convictions. The Court of Appeals upheld this sentencing scheme, ruling that "the trial court did not have discretion to impose concurrent five-year sentences for defendant's convictions under Counts 5, 6, 9, 13, 16, 19, and 21 of the indictment."² For the reasons that follow, we conclude that the Court of Appeals erred in this holding.

OCGA § 16-11-106(b) sets forth the elements of the crime of being in possession of a firearm during the commission of a felony, and further provides that "upon conviction thereof, [the defendant] shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence which the person has received." The State contends that, by providing that a sentence for violating subsection (b) must "run consecutively to any other sentence which the person has received," subsection (b) plainly and unambiguously requires that any sentence received under that subsection must run consecutively to any other sentence imposed on the defendant before or at the sentencing for the violation of subsection ( [271 Ga. 592] b) that is at issue, which would include any prior sentences for a possession of a firearm offense under § 16-11-106. We disagree with this analysis for several reasons.

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute's text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that "the

523 S.E.2d 23

meaning of a sentence may be more than that of the separate words, as a melody is more than the notes."³ If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words.⁴ If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute⁵ and "`the old law, the evil, and the remedy.' OCGA § 1-3-1(a)."⁶ Moreover, because this is a criminal statute, it must be strictly construed against the State.⁷

We conclude that the State improperly considers in isolation the phrase from subsection (b) on which it relies,⁸ and that the literal reading that the State ascribes to subsection (b) is too rigid and narrow and fails to account for ambiguities in the statutory language. Even assuming, however, that the State's rigid reading of subsection (b) is accurate, it cannot be followed as it produces the absurd and impractical result of having subsection (b) directly contradict the more specific provisions of subsection (c) of § 16-11-106. Under the State's reading of subsection (b), subsection (b) would require the five-year sentence specified by it to run consecutively to any sentence imposed upon the defendant before the trial for the present possession offense, including any prior sentence for a possession offense. The dilemma faced by the State with this reading of the statute is demonstrated by an examination of subsection (c) of § 16-11-106. That subsection provides as follows:

(c) Upon the second or subsequent conviction of a person under this Code section, the person shall be punished by [271 Ga. 593] confinement for a period of ten years. Notwithstanding any other law to the contrary, the sentence of any person which is imposed for violating this Code section a second or subsequent time shall not be suspended by the court and probationary sentence imposed in lieu thereof.

Because the State's reading of subsection (b) requires that its five-year sentence be imposed upon a prior possession offense, and because subsection (c) plainly provides for a ten-year sentence when a defendant has a prior conviction for a possession offense, the State's reading of subsection (b) places it in conflict with subsection (c). And, because subsection (c) is the more specific provision, it must control. Thus, the State's literal reading of subsection (b) produces an unreasonable, contradictory result, and cannot be followed.⁹

Moreover, we conclude that subsection (b) is, in fact, ambiguous. The ambiguity stems from the fact that the subsection does not specify the crime or crimes for which the "any other sentence the person has received" was imposed. For instance, subsection (b) could be read as providing that the defendant "shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence the person has received for the underlying felony for the possession offense." Or, the subsection could be read equally as reasonably as providing that the defendant "shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence the person has received for crimes

523 S.E.2d 24

for which he was convicted during the trial of the possession offense." Similarly, as we have seen, the State would urge that the statute could reasonably be read as providing that the defendant "shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence the person has received for crimes for which he was convicted either before or during the trial of the possession offense." We have already concluded, however, that this latter reading is not reasonable

We conclude that the most logical interpretation, and the one most in keeping with the purpose of § 16-11-106, is to require that the five-year sentence of subsection (b) run consecutively only to the underlying felony to the possession of a firearm offense. First, the elements of the substantive crime of possession of a firearm during the commission of a felony are described in the part of subsection (b) that...