State v. Smith , 193 Ga. App. 831 ( 1989 )

Deen, Presiding Judge,

concurring specially.

I concur fully with the majority opinion’s conclusion that the trial court improperly merged eight of twelve valid, separate convictions of armed robbery into four counts, based upon an “incident location” theory. Under OCGA § 16-8-41 (b), a person convicted of armed robbery “shall be punished by death or imprisonment for life or by imprisonment for not less than five nor more than 20 years; provided, however, that, for a second or subsequent such offense, the defendant shall be punished by imprisonment for not less than ten years.” Some sentence, within the specified limits, is mandatory. In the whole court case of State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978), this court held that because a superior court has no jurisdiction to probate a sentence imposed on a conviction of armed robbery, such a sentence was absolutely void and thus subject to appeal by the State. It would appear that the State’s right to appeal should be even more certain where, as in the instant case, the trial court does not enter any sentence at all on several valid convictions of armed robbery.

I note also that OCGA § 5-7-1 (2) affords an appeal by the State from an “order, decision, or judgment arresting judgment of conviction upon legal grounds.” The trial court’s improper merger of so many convictions of armed robbery certainly had the legal effect of “arresting judgment of conviction upon legal grounds.” The State’s right to appeal could be sustained on that basis. “ ‘If a verdict, when construed with the indictment, does not find the defendant guilty of any offense, the judgment should be arrested; but where . . . the allegations of the indictment charge ... a violation of the law, which can be plainly understood by the jury, and a verdict finding the defendant guilty cannot be ignored without violating the rules of common sense, sentence should be pronounced upon the finding.’ ” King v. State, 103 Ga. App. 272, 274 (119 SE2d 77) (1961).

Decided December 5, 1989. Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellant. Lillian Neal, for appellee.