DOBBS v. STATE (2021)

Court of Appeals of Georgia.2021-04-26No. A20A0738

Summary · law.co

Holding. The court vacated its prior division addressing merger and remanded the case for resentencing, holding that because Dobbs's aggravated battery and attempted murder convictions arose from the same conduct, the trial court must merge the aggravated battery convictions into the attempted murder conviction for sentencing purposes.

Willie Dobbs was convicted of multiple offenses related to a shooting. The appellate court initially affirmed his convictions but vacated his sentence and remanded for resentencing because the trial court failed to properly merge certain convictions. The court had held that the attempted murder conviction should have been merged into the aggravated battery convictions. However, the state supreme court subsequently overruled the precedent supporting that merger rule, establishing instead that the lesser offense (aggravated battery) merges into the greater offense (attempted murder) when both arise from the same conduct, with attempted murder treated as the greater offense based on its more severe penalty.

The supreme court vacated the appellate court's prior decision in this case and remanded for reconsideration in light of the new merger doctrine. On remand, the appellate court corrected its earlier holding, now requiring that the aggravated battery convictions be merged into the attempted murder conviction rather than the reverse. The court confirmed that its other prior holdings—regarding factual matters, judicial comments to the jury, and a separate merger of Dobbs's two aggravated battery convictions—remained valid and were not affected by the supreme court's decision.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Merger of lesser and greater offenses for sentencing when predicated on the same conduct
Whether attempted murder or aggravated battery is the greater offense
Effect of supreme court reversal of precedent on appellate court decision

Procedural posture

The appellate court's original decision affirming convictions and vacating sentence was itself vacated by the state supreme court, which remanded the case to the appellate court for reconsideration in light of newly established merger doctrine.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

In Dobbs v. State, 355 Ga. App. 357, 843 S.E.2d 437 (2020), we affirmed Willie Dobbss 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 Dobbss 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 Dobbss 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 Courts 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.

McFadden, Chief Judge.

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