Walker v. Hale
Decision Date | 11 February 2008 |
Docket Number | No. S07X1854.,No. S07A1853.,S07A1853.,S07X1854. |
Citation | 283 Ga. 131,657 S.E.2d 227 |
Parties | WALKER v. HALE. Hale v. Walker. |
Court | Georgia Supreme Court |
Daniel Hale was indicted on charges of malice murder, two counts of felony murder based on the underlying felonies of aggravated assault and possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. The State gave notice of its intent to seek recidivist punishment pursuant to OCGA § 17-10-7 based on Hale's prior West Virginia conviction for second degree murder. Hale was found guilty of all charges by a jury. During sentencing, the State introduced, inter alia, a certified copy of Hale's prior conviction. The court determined that the felony murder charges were vacated by operation of law, see Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993), and applying the provisions of OCGA § 17-10-7(b)(2),1 imposed on Hale a sentence of life imprisonment without the possibility of parole plus an additional five-year prison term on his conviction for possession of a firearm during the commission of a crime. His convictions were affirmed on appeal. Hale v. State, 274 Ga. 863, 561 S.E.2d 70 (2002).
Hale subsequently filed a petition for writ of habeas corpus in which he alleged that the trial court erred by sentencing him under the recidivist statute and that trial counsel was ineffective for failing to present evidence in support of his claim of self-defense. After a hearing, the habeas court granted the petition in part, setting aside Hale's sentence of life without parole but denying relief as to Hale's convictions. In Case No. S07A1853, the warden appeals from that part of the court's order setting aside the sentence of life without parole. Hale appeals from the court's denial of relief on the other grounds in Case No. S07X1854. For the reasons that follow, we reverse the habeas court's ruling in the warden's appeal and affirm the ruling denying Hale relief on the remaining grounds.
1. Relying on the decision of the Court of Appeals in King v. State, 169 Ga.App. 444, 313 S.E.2d 144 (1984), the habeas court found that the trial court "used up" the evidence of Hale's prior conviction to support the charge that he was a convicted felon in possession of a handgun, the underlying felony in count 3 of the indictment, thereby precluding the court from using the same prior conviction to sentence him as a recidivist under OCGA § 17-10-7(b)(2). In King, the court held that the allegation and evidence of a prior felony conviction, necessary for conviction as a felon in possession of a firearm under OCGA § 16-11-431, could not also be used to punish a defendant as a repeat offender under OCGA § 17-10-7(a). Id. at 445, 313 S.E.2d 144. King and its progeny stand for the limited proposition that the felony used to convict a defendant of possession of a firearm by a convicted felon cannot also be used to enhance the defendant's punishment as a repeat offender under OCGA § 17-10-7(a). See Morgan v. State, 277 Ga.App. 670, 672-673, 627 S.E.2d 413 (2006) ( ); Carswell v. State, 263 Ga.App. 833, 589 S.E.2d 605 (2003) ( ); Caver v. State, 215 Ga.App. 711, 452 S.E.2d 515 (1994) ( ).
This court has not been called upon to consider the validity of the King rule against dual use of a prior conviction both as an element of an offense and for sentence enhancement, and we find it unnecessary to do so here. The record in this case demonstrates that the charge against Hale of felony murder with the underlying felony of possession of a firearm by a convicted felon was vacated by operation of law and no conviction on that charge was entered. See OCGA § 16-1-7 ( ); Malcolm, supra. See also OCGA § 16-1-3(4) ( ). Accordingly, unlike in King, the trial court did not use the prior felony conviction both to support a conviction on the possession charge and to enhance Hale's sentence. Instead, Hale was convicted of malice murder, sentenced to life imprisonment pursuant to Georgia's murder statute, and because of his prior conviction of a serious violent felony, he was properly sentenced to life without the possibility of parole as required under OCGA § 17-10-7(b)(2).
2. We agree with the habeas court that Hale's prior West Virginia conviction for the offense of second degree murder constituted a "serious violent felony" under OCGA § 17-10-6.1. The State introduced evidence of Hale's prior conviction for the offense of second degree murder, which, under West Virginia law, required a showing of malice. See W. Va.Code 61-2-1 (1979); State v. Boles, 151 S.E.2d 115, 151 W.Va. 194, 198 (1966) ( ). The West Virginia indictment charged that Hale did "feloniously, willfully, maliciously, deliberately and unlawfully slay, kill and murder" the victim. Although the language of the indictment does not...
To continue reading
Request your trial-
Ovalles v. United States
... ... 62 See Walker v. Hale , 283 Ga. 131, 657 S.E.2d 227, 230 (2008) (holding that an out-of-state crime qualifies as a predicate offense under Georgia's recidivist ... ...
-
Raymond v. State
... ... However, the King rule is not implicated unless a conviction on the charge is entered. Walker v. Hale, 283 Ga. 131, 132(1), 657 S.E.2d 227 (2008). In Walker, the charge against the defendant of felony murder with the underlying felony of ... ...
-
Allen v. State
... ... of a firearm by a convicted felon cannot also be used to enhance the defendant's punishment as a repeat offender under OCGA § 17-10-7(a)." Walker v. Hale, 283 Ga. 131(1), 657 S.E.2d 227 (2008). In King, the Court of Appeals reasoned that the legislature did not intend "that repeat offender ... ...
-
Thompson v. State, A07A2306.
... ... As explained by our Supreme Court in Walker v. Hale, 283 Ga. 131, 132(1), 657 S.E.2d 227 (2008), ... King and its progeny stand for the limited proposition that the felony used ... ...