Willie Dobbs v. State

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
April 26, 2021
In the Court of Appeals of Georgia
A20A0738. DOBBS v. THE STATE.
MCFADDEN, Chief Judge.
In Dobbs v. State, 355 Ga. App. 357 (843 SE2d 437) (2020), we affirmed
Willie Dobbs’s 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). We based that
holding on our precedent in Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733)
(2015) and Hernandez v. State, 317 Ga. App. 845 (733 SE2d 30) (2012).
The next month, our Supreme Court overruled Hernandez and Zamudio, as
well as our decision 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 SE2d 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).
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, 2020 Ga. LEXIS 861 (2020).
In light of Priester, we vacate Division 3 (b) of our earlier opinion. In its place,
we hold that, because Dobbs’s 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).
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); 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); and Division 3 (a), which
held that Dobbs’s two aggravated battery convictions must be merged for sentencing
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purposes, id. at 359-360 (3) (a). See Priester, 309 Ga. 330. Because those divisions
are not inconsistent with the Supreme Court’s opinion in Priester, they “bec[a]me
binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563
(1) (554 SE2d 465) (2001).
Judgment affirmed, sentence vacated, and case remanded for resentencing.
Doyle, P. J., and Hodges, J., concur.
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