Carter v. State , 238 Ga. App. 632 ( 1999 )

Eldridge, Judge,

concurring specially.

I concur in judgment only. Carter’s convictions for both burglary and arson should be affirmed; they do not merge as a matter of fact or law. However, I disagree that this Court must “disapprove” our prior holdings in Lockett v. State, 153 Ga. App. 569 (266 SE2d 236) (1980), Darden v. State, 165 Ga. App. 739 (302 SE2d 425) (1983), and McClinic v. State, 172 Ga. App. 54 (321 SE2d 796) (1984), in order to reach this conclusion.

Lockett, Darden, and McClinic each decided the applicability of the otherwise correct statement of law “theft by taking is a lesser included offense of burglary” based upon the facts of their individual cases.⁴ Contrary to the majority’s assertions, these cases do not “imply” that theft by taking is ALWAYS a lesser included offense of burglary, regardless of the facts of the case. Indeed, the definition of a “lesser included offense” precludes a disregard of the facts of an individual case. OCGA § 16-1-6.

More importantly, appellant Carter does not even raise this issue. Carter’s allegation involves the merger of arson and burglary — not theft by taking and burglary. And Carter cites the theft by taking/burglary case of Lockett v. State, supra, only in illustration of his contention that, even when the facts do warrant the merger of an underlying felony offense into the offense of burglary, the appellate courts have taken a divergent approach toward the merger of violent underlying felony offenses, like rape or kidnapping (Palmer v. State, 174 Ga. App. 720 (331 SE2d 77) (1985); Childs v. State, 257 Ga. 243 (357 SE2d 42) (1987), and the merger of non-violent underlying offenses, like theft by taking (Lockett v. State).⁵ Thus, the majority’s basis for “disapproving” Lockett, Darden, and McClinic (i.e., as standing “for the proposition that theft by taking is always a lesser included offense of burglary”), is not raised by Carter and does not affect Carter’s contentions — or his case — one iota.

Decided June 23, 1999. James E. Millsaps, for appellant. Alan A. Cook, District Attorney, Jennifer E. Greene, Assistant District Attorney, for appellee.

Accordingly, neither by enumeration of error, argument, nor substantive merit is it necessary to do what the majority has done. It is unnecessary to the resolution of this case or for any other matter. In my view, gratuitously disapproving legitimate, precedential case law — even to a “very limited extent” — for no valid reason undermines our legal system and the public’s confidence therein.

4 Lockett at 570: “In this case there was evidence to support this theory of guilt [theft by taking]”; Darden at 741: “There was evidence to support this theory of guilt [theft by taking]”; and McClinic at 54: “In the instant case, the offense of theft by taking was included in the offense of burglary!.]”

5 Carter opines that the approach of such cases as Palmer and Childs toward the merger of violent underlying felonies is based upon a reluctance to merge an offense that carries a life sentence into an offense which carries only a twenty year sentence, i.e., burglary. He concludes that such reluctance to merge must not be present with a less serious underlying offense, like theft by taking in the Lockett case, which carries a penalty of only ten years — and thus, presumably, with arson which carries only a twenty year sentence.