Parker v. State , 270 Ga. 256 ( 1998 )

Hines, Justice,

concurring.

I write separately because I disagree with the statements in Division 1 that the trial court erred in ruling that the conviction for cruelty to children merged into the conviction for malice murder for the purpose of sentencing. McCartney v. State, 262 Ga. 156, 160 (5) (414 SE2d 227) (1992), cited in the opinion, involved evidence of childhood maltreatment syndrome or abused child syndrome, and does not stand for the proposition that the offense of cruelty to children can never be included as a matter of fact in the crime of malice murder. Here, in accord with Malcolm v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993), the trial court made the finding that the underlying felony did merge as a matter of fact into the malice murder count, and the correctness of that factual determination is not at issue in the appeal.

I am authorized to state that Presiding Justice Fletcher joins in this concurrence.