State v. McCrary

Weltner, Justice.

1. The trial court granted McCrary’s motion to set aside two of three sentences imposed for convictions of statutory rape, relying upon the rule enunciated in LaPan v. State, 167 Ga. App. 250 (305 SE2d 858) (1983), as follows:

The trial court erred in imposing separate sentences for each of the three convictions of rape. The three charges differed from one another only with respect to the averment of date, and in none of the three was the date made an essential element. Since all the dates alleged fall within the period of the statute of limitation, only one sentence can be imposed. [Id. at 253-4.]

The state appealed the trial court’s order, and the appeal was transferred to this court by the Court of Appeals, with the view that the case is in the nature of a petition for habeas corpus.¹ State v. McCrary, 193 Ga. App. 11 (387 SE2d 10) (1989).

2. (a) The state urges in its appeal that the rule of LaPan, supra, should not be applied in prosecutions for multiple sexual assaults against child victims because of the impracticality of treating the dates specified in indictments as material averments.

(b) The victim of sexual assault in LaPan, supra, was also a child, and the trial court did not err in applying its rule in this case.

Judgment affirmed.

All the Justices concur. Decided February 22, 1990. Willis B. Sparks, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellant. James C. Bonner, Jr., for appellee.

1 The Court of Appeals relied upon Sims v. State, 230 Ga. 589 (198 SE2d 298) (1973):

The trial judge [in that case] properly treated the petition as one for habeas corpus, since a motion to set aside a verdict and judgment is not an appropriate remedy in this state in a criminal case. [Id. at 590.]

But see McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981): “[I]f the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time.”