dissenting.
I must respectfully dissent because today a majority of the Justices of this Court issues an opinion which contravenes the expressed intent of the Georgia General Assembly, and which is a radical departure from current Georgia law and traditional notions of statutory and constitutional double jeopardy. We granted certiorari to the Court of Appeals in these cases to consider the not uncommon situation in which a defendant is charged with and found guilty of multiple counts of possession of a weapon during the commission of a crime and the same weapon is used against the same victim in the commission of each underlying distinct crime.
Subsection (e) of OCGA § 16-11-106 contemplates multiple sentences under the statute. The subsection provides that “[a]ny crime committed in violation of subsections (b) and (c) of this Code section shall be considered a separate offense.” This expresses the plain legislative intent that additional punishment be imposed for conduct which violates both OCGA § 16-11-106 and other felony statutes. Miller v. State, 250 Ga. 436, 437 (2) (298 SE2d 509) (1983). “Judicial construction is appropriate only when a statute is ambiguous, and when the statutory language is plain and unequivocal, judicial construction is not only unnecessary but forbidden.” Glover v. State, 272 Ga. 639, 640 (533 SE2d 374) (2000). Moreover, this Court long ago decided that it is “not constitutionally prohibited, nor is it violative of our double jeopardy statutes to convict a person of both possession of a firearm during the commission of a felony and the accompanying felony in a single prosecution.” Id. quoting Wiley v. State, 250 Ga. 343, 351 (6) (296 SE2d 714) (1982).
In Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999), this *390Court determined that judicial construction of subsection (b) of OCGA § 16-11-106 was warranted, and concluded that subsection (b)’s provision for a five-year sentence had to be imposed consecutively to the sentence that the person received for the underlying felony. Thus, the person must be convicted of the underlying felony in order to receive punishment for the concomitant weapon possession. However, the Busch decision in no manner prevents the imposition of punishment for multiple counts of possession of a single weapon during the commission of multiple underlying felonies when the underlying felonies do not merge. In fact, the Busch analysis clearly contemplates multiple sentences for multiple violations of OCGA § 16-11-106. Busch v. State at 592-593.
This Court has already considered the propriety of multiple convictions of weapon possession in a situation much like the present, one in which a defendant used a single weapon in the commission of more than one underlying crime, in Gilchrist v. State, 270 Ga. 287 (508 SE2d 409) (1998). Gilchrist was convicted of murder, aggravated assault, and two counts of possession of a knife during the commission of a crime stemming from the defendant’s attacks with the same knife against two separate victims. Citing the double jeopardy statutes, this Court held that it was not error for the trial court to refuse to merge the convictions entered on the two charges of violation of OCGA § 16-11-106. The fact that the multiple weapon possession violations occurred during one continuous criminal attack did not alter the defendant’s culpability and punishment for the separate possession offenses. Thus, the only question remaining unsettled by this Court is whether such an analysis is extant when the underlying felonies are committed against the same victim.
As has been discussed, it is well established that the charge of possession of a firearm or knife during the commission of certain crimes does not merge with the underlying felony, and that there is no merger among the possession charges as a matter of law. Thus, the next step in the analysis is whether there is merger of the possession charges as a matter of fact. The “actual evidence” test is used to determine whether one crime is included in another as a matter of fact, that is, “ ‘ “[I]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact. . . OCGA § 16-1-6 (1).” ’ [Cits.]” Mitchell v. State, 275 Ga. 42, 43 (2) (561 SE2d 803) (2002), quoting Montes v. State, 262 Ga. 473 (1) (421 SE2d 710) (1992). In both Marlowe v. State, 258 Ga. App. 152 (572 SE2d 685) (2002), and Pearson v. State, 258 Ga. App. 651 (574 SE2d 820) (2002), the Court of Appeals found that each defendant possessed his weapon while committing distinct and separate crimes which did not merge. Marlowe at 153 (2); Pearson at 658 (6). Therefore, the weapon *391possession offenses based upon those crimes cannot merge with each other as a matter of fact.
Decided November 17, 2003. John T. Strauss, for Malone and Pearson.The majority finds that it is inappropriate to apply this “actual evidence” test or “required evidence” test embodied in the double jeopardy statutes, OCGA §§ 16-1-6 and 16-1-7, in the situation presented here, and instead would examine the double jeopardy question by determining a “unit of prosecution.” The majority then focuses on a conveniently-found ambiguity in OCGA § 16-11-106 (b), in order to find that the “relevant unit of prosecution” is the possession of a weapon during the commission of the “categories” of felonies it finds in subsection (b). This construct is used to reach the intended result that a defendant be punished only for one possession offense for each victim of a crime against or involving their person and for one possession offense for the commission of each property or drug crime. However, it cannot be credibly argued that the legislature intended the sanctions of OCGA § 16-11-106 to apply based upon such an analysis.
The “unit of prosecution” yardstick has no precedence in Georgia law. Nor is it a measure readily or easily applied by the federal courts.25 Even so, engrafting this illusive federal concept onto our clear State notions of statutory and constitutional double jeopardy, should not yield the result desired by the majority. If indeed, as stated by the majority, the “unit of prosecution” analysis focuses exclusively on the use of the weapon, then OCGA § 16-11-106 plainly warrants as many convictions as there are predicate offenses. In other words, the statute is clearly intended to punish the use of a weapon in each instance in which a predicate felony is committed, even if only a single victim is involved.
It must be concluded that the circumstance that all of the underlying felonies in Marlowe and some of the underlying felonies in Pearson were perpetrated against a single victim does not alter the legislative mandate of OCGA § 16-11-106 (e). Accordingly, I would reverse the judgment in Case No. S03G0351 and affirm the judgment in Case No. S03G0564.
*392W. Kendall Wynne, Jr., District Attorney, Jeffrey L. Foster, Assistant District Attorney, for the State.Bell v. United States, 349 U. S. 81 (75 SC 620, 99 LE2d 905) (1955), cited by the majority, expressly acknowledges the frequent difficulty of ascertaining the “unit of prosecution.” In fact, the opinion of the Court begins by stating, “Once more it becomes necessary to determine “What Congress has made the allowable unit of prosecution,’ [cit.], under a statute which does not explicitly give the answer.” Id.