FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and COOMER, JJ.
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.
http://www.gaappeals.us/rules
March 26, 2019
In the Court of Appeals of Georgia
A17A1463. HARRELL v. THE STATE.
A17A1464. HARRELL v. THE STATE.
GOBEIL, Judge.
This opinion represents the second time we have considered these consolidated
appeals, which involve the question of whether the sentence imposed on David
Willard Harrell following his conviction for three counts of possession of a firearm
by a convicted felon was either subject to modification or void. In an unpublished,
per curiam opinion dated March 12, 2018, we affirmed the trial court’s order denying
Harrell’s motion for sentence modification in Case No. A17A1463. Additionally, in
Case No. A17A1464, we dismissed Harrell’s appeal from the trial court’s order
denying Harrell’s motion to vacate his sentence as void. The Georgia Supreme Court
thereafter granted Harrell’s petition for certiorari, vacated our opinion and order of
dismissal, and remanded the case to this Court for reconsideration in light of the
Supreme Court’s decision in Coates v. State, 304 Ga. 329 (818 SE2d 622) (2018). As
explained more fully below, in light of Coates, we vacate Harrell’s convictions and
sentences and remand these cases to the trial court for entry of a new judgment of
conviction and a new sentence.
The relevant facts are undisputed and show that when the police responded to
a 911 call reporting a shooting, they found Harrell’s girlfriend (the victim of the
shooting), Harrell, and three different firearms (a pistol, a shotgun, and a rifle) at the
scene. Harrell was subsequently charged with three counts of possession of a firearm
by a convicted felon, in violation of OCGA § 16-11-131 (b).1
Harrell pled guilty to the charges under a negotiated plea agreement, and the
trial court then sentenced Harrell to five years on each of the three counts of
possession of a firearm, with five years to serve in incarceration and the remaining
10 years to be served on probation. Harrell thereafter filed a motion to reduce his
sentence arguing, inter alia, that his three separate convictions for possession of a
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Although police suspected Harell in the shooting of his girlfriend, they opted
not to charge him with aggravated assault. Given the inconsistent statements made
by the girlfriend and the girlfriend’s insistence that she did not want Harrell to go to
jail, the prosecutor doubted the State’s ability to obtain a conviction for the assault.
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firearm should have been merged for sentencing purposes. The trial court denied that
motion, and Harrell then filed a motion to correct a void sentence, again asserting that
the trial court erred in sentencing him separately on each of the three counts. After the
trial court denied that motion, Harrell appealed the denial of both his motion to
modify his sentence (Case No. A17A1463) and his motion to vacate his sentence as
void (Case No. A17A1464).
Prior to the Georgia Supreme Court’s decision in Coates, this Court had held
that a convicted felon could be charged, convicted, and sentenced separately for each
of the firearms found in his possession at the time of his arrest. Coates v. State, 342
Ga. App. 148, 152-153 (802 SE2d 65) (2017); Warren v. State, 289 Ga. App. 481,
484 (3) (657 SE2d 533) (2008). Relying on that law, our original opinion affirmed the
trial court’s denial of Harrell’s motion to modify his sentence and dismissed Harrell’s
appeal from the denial of his motion to vacate his sentence as void. In Coates,
however, the Supreme Court of Georgia overruled our prior decisions on this issue
and held that OCGA § 16-11-131 (b) permits only one prosecution, conviction, and
sentence “for the simultaneous possession of multiple firearms.” 304 Ga. at 332.
Applying the holding in Coates to the cases at hand, we find that the trial court
erred in convicting and sentencing Harrell for three separate violations of OCGA §
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16-11-131 (b) based on his simultaneous possession of a pistol, a shotgun, and a rifle.
Accordingly, we reverse the trial court’s orders in Case Nos. A17A1463 and
A17A1464, “vacate [Harrell’s] convictions and sentences for the [three] counts of
possession of a firearm by a convicted felon, and remand this case for the trial court
to convict and resentence [Harrell] on only one of those counts.” Coates, 304 Ga. at
332.
Judgments reversed, convictions vacated, and cases remanded with direction.
McFadden, P. J., and Coomer, J., concur.
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