Busch v. State

McMurray, Presiding Judge.

In Busch v. State, 234 Ga. App. 766 (507 SE2d 868), we affirmed defendant Busch’s judgments of conviction, remanded the case to the trial court in Divisions 4 (b), (c), and (d) for resentencing under several counts of the indictment, and held in Division 6 of our opinion that “[t]he trial court did not err in sentencing defendant to seven consecutive five-year sentences for being convicted of possession of a firearm during the commission of a crime under Counts 5, 6, 9, 13, 16, 19 and 21 of the indictment.” Id. at 769 (6). The basis of this holding was our determination that “the trial court did not have discretion [under OCGA § 16-11-106 (b)] to impose concurrent five-year sentences for defendant’s convictions under Counts 5, 6, 9, 13, 16, 19 and 21 of the indictment.” Id. The Supreme Court of Georgia did not agree with this holding in Division 6 and reversed our judgment in Busch v. State, 271 Ga. 591 (523 SE2d 21) (1999), holding that OCGA § 16-11-106 (b) mandates consecutive sentencing only as to the particular felony during the commission of which the defendant possessed a firearm. Accordingly, our judgment in the case sub judice is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. The case sub judice is hereby remanded for resentencing according to the Supreme Court of Georgia’s holding and according to our holding in Divisions 4 (b), (c), and (d) of Busch v. State, 234 Ga. App. 766, supra.

Decided January 10, 2000. Elizabeth Lane, for appellant. Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part and case remanded for resentencing.

Blackburn, P. J., and Eldridge, J, concur.