State v. Freeman, A90A2307
| Decision Date | 12 February 1991 |
| Docket Number | No. A90A2307,A90A2307 |
| Citation | 198 Ga.App. 553,402 S.E.2d 529 |
| Parties | The STATE v. FREEMAN. |
| Court | Georgia Court of Appeals |
Michael H. Crawford, Dist. Atty., for appellant.
Thompson, Fox, Chandler & Homans, David A. Fox, Gainesville, for appellee.
The State of Georgia appeals the sentence imposed upon Jonathon Russell Freeman. Freeman (hereinafter defendant) was indicted for malice murder and felony murder in Count 1 and for possession of a firearm by a convicted felon in Count 2. Although the grand jury apparently did not return an indictment with a separate recidivist count, the second count averred that defendant had been convicted previously in the same court and on the same day of certain felony offenses, to-wit: in criminal case no. 82-167 of one count of entering an automobile and of two counts of burglary, and in criminal case no. 82-168 of one count of entering an automobile. Appellant was found not guilty of malice murder and felony murder, but guilty of voluntary manslaughter and possession of a firearm by a convicted felon.
The trial court, over protestation by the State, sentenced appellant on the manslaughter count to five years and upon the service of two years confinement, the remaining three years to be served on probation, and on the possession of a firearm count to two years confinement to run concurrently with the confinement adjudged for the manslaughter count.
The State asserts the sentence is void as it erroneously fails to provide for a 20-year sentence of the recidivist defendant, pursuant to OCGA § 17-10-7 operating in conjunction with OCGA § 16-5-2. Held:
1. OCGA § 16-5-2(b) provides the punishment for voluntary manslaughter "shall be ... imprisonment for not less than one nor more than 20 years." OCGA § 17-10-7(a) provides pertinently that "[a]ny person convicted of a felony offense in this state ... which ... 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 be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense." (Emphasis supplied.) Thus, if OCGA § 17-10-7 is operative in this case the trial court would be required to impose the maximum sentence upon the defendant legislatively prescribed for voluntary manslaughter, and only then could it exercise its discretionary power to probate or suspend the maximum sentence imposed.
2. In McCoy v. State, 168 Ga.App. 598, 599, 310 S.E.2d 2, this court considered an appeal from a defendant's conviction of armed robbery, kidnapping and possession of a firearm by a convicted felon. The defendant contended on appeal the trial court improperly sentenced him as a recidivist because it considered convictions not final. We affirmed judgment and denied motion for rehearing holding, However, the reported facts do not reflect whether the 1977 robbery averment was contained within a recidivist count in the indictment or solely within the count for possession of a firearm by a convicted felon.
Subsequently, in King v. State, 169 Ga.App. 444, 313 S.E.2d 144, this court considered the "first impression issue" of 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 that offense under the repeat offender statute, OCGA § 17-10-7. The King court persuasively concluded "the General Assembly did not intend that the allegation and evidence of a prior felony conviction, necessary for conviction under OCGA § 16-11-131 (Code Ann. § 26-2914), could also be used to punish a defendant as a repeat offender under OCGA § 17-10-7(a) (Code Ann. § 27-2511); and did intend that the punishment provisions established for the offense be the only standard applied in sentencing." Id. at 445, 313 S.E.2d 144. Accordingly if, within the meaning of King, proof was necessary of each of the averments of prior felony offenses found in the count of possession of firearm by a convicted felon for defendant's conviction under OCGA § 16-11-131, that same evidence could not be utilized to support defendant's enhanced punishment as a repeat offender under OCGA § 17-10-7. King, supra.
The State elected to aver in the possession of firearm by felon count each of defendant's prior felony offenses; moreover, in view of the consolidation for trial of the two previous indictments, defendant is deemed to have only one prior conviction for purposes of OCGA § 17-10-7. OCGA § 17-10-7(c); see generally Queen v. State, 182 Ga.App. 794(1), 357 S.E.2d 150; Dobbs v. State, 180 Ga.App. 714(2)(A), 350 S.E.2d 469. "Although listing a defendant's entire record on the [face] of an indictment has been discouraged, [cit.], the [S]tate is not limited to alleging and proving only one prior felony conviction when proof of a felony conviction is an element of the crime charged." (Emphasis supplied.) Favors v. State, 182 Ga.App. 179(2), 355 S.E.2d 109; Head v. State, 170 Ga.App. 324, 326(3), 316 S.E.2d 791, rev'd on other grounds, 253 Ga. 429, 322 S.E.2d 228. However, if the State elects to aver in a possession of firearm by felon count that the defendant has been convicted of more than one prior felony offense, such averment is descriptive of the manner in which the offense was committed and, as such, the State must make an honest attempt to prove the offense "as laid" (see generally Ross v. State, 195 Ga.App. 624(1)(b), 394 S.E.2d 418 and cases therein cited); any other holding would permit the State to list all of an offender's prior offenses without any intent to prove each of the averments and merely to enflame the jury. Accordingly, once the State elects to aver, either in whole or in part, the defendant's criminal conviction record, proof of such averments becomes necessary within the meaning of King, supra, and these averred offenses subsequently cannot be considered for punishment enhancement under OCGA § 17-10-7. Thus, it behooves the State to make a careful determination at the onset whether to aver all of defendant's prior criminal convictions in the possession of firearm by felon count and thus be able to introduce evidence of all those offenses in its case-in-chief, or whether to withhold for sentencing purposes some of the averments for use in a separate recidivist count or notice and thus to forego usually its ability to introduce that particular evidence of prior convictions before the jury...
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