Harwell v. State

Eldridge, Judge,

dissenting.

I concur fully in Presiding Judge McMurray’s dissent in this case. I write separately to make the following points.

1. When an illegal sentence is discovered by this Court through a review of related issues, we will address it. Queen v. State, 210 Ga. App. 588, 589-590 (2) (436 SE2d 714) (1993) (Beasley, P. J., for the majority).

If the majority is correct and the jury found Harwell guilty of aggravated assault with intent to rob, then the offense merges with the armed robbery conviction, and Harwell’s conviction and sentence for aggravated assault are illegal and void. Griffin v. State, 172 Ga. App. 184 (322 SE2d 295) (1984). While Harwell may be prosecuted for both offenses, he “may not, however, be convicted of more than one crime if [one] crime is included in the other.” (Emphasis supplied.) OCGA § 16-1-7 (a) (1).

Further, we recently held that when a void sentence has been imposed, “the case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence” (Emphasis in original.) Bryant v. State, 229 Ga. App. 534, 536 (494 SE2d 353) (1997). Thus, regardless of whether the issue was raised properly, if a void sentence has been imposed, this Court cannot “affirm” the conviction, because the case is still pending as a matter of law. The promotion of such legal limbo makes little sense.

A sentence which is void ab initio may be challenged at any time. Judicial economy and fairness “dictate that that which should have been done be done.” Jefferson v. Ross, 250 Ga. 817, 819 (301 SE2d 268) (1983).

2. As to the merits of Harwell’s claim, the majority finds that we can be reasonably sure the jury convicted on the indicted offense, aggravated assault with intent to rob, because:

*161(a) The trial court “read the indictment to the jury verbatim in advising them of the offense.”

It is important to recognize that this is not the law. The cases relied upon by the majority for the above proposition did not base their holdings solely upon the “verbatim” recitation of the indictment as does the majority. In each of the cases cited by the majority: (1) there was no evidence to support the incorrect jury charge; (2) the incorrect charge was inapplicable under the facts of the case; and (3) the indictment was read verbatim.3 That is not the situation here, where the problem is that we do have evidence of the unindicted offense, and the trial court authorized the jury to convict on the unindicted offense under Count 2 of the indictment.

(b) The jurors wrote “Count two: guilty” on the back of the “very indictment.”

This is meaningless when the trial judge told the jury that Count 2 could be committed in more than one way. Further, the jury did not write “guilty as charged” as they did in another case incorrectly cited by the majority as authority for upholding this conviction, Green v. State, 221 Ga. App. 694, 695 (472 SE2d 457) (1996).

(c) There was no evidence that the stun gun is an “object or device likely to cause serious injury” so as to support a conviction on the unindicted form of aggravated assault.

If the stun gun was a sufficient “offensive weapon” to support Harwell’s armed robbery conviction, under the facts of this case it was sufficient to support a conviction for aggravated assault with an object or device likely to cause injury.4

Even the trial judge, when questioned by defense counsel on why he charged aggravated assault with a device likely to cause injury, stated, “Well, didn’t he have an offensive weapon? Or device? The charge fits the facts of the case.”

If the judge was “confused” as to which form of aggravated assault was proper under the facts and the indictment, this Court can be reasonably sure the jury was as well.

In fact, herein the prosecution made a mistake by indicting for the wrong form of aggravated assault; the trial court made a mistake by charging the jury with the right, but unindicted, form of aggravated assault; and in my view, this Court makes a mistake by upholding it all.

*162Decided March 12, 1998 Hagler, Kyles, Adams & McKenna, Clark C. Adams, Jr., for appellant. J. Gray Conger, District Attorney, Margaret E. Bagley, Assistant District Attorney, for appellee.

3. Accordingly, the aggravated assault conviction must go, whether by recognizing that the jury charge thereon requires a reversal, as advocated by Presiding Judge McMurray and myself, or by recognizing that the void conviction and sentence thereon require a reversal and remand, as is the case under the majority’s analysis.

Thomas v. State, 268 Ga. 135, 141 (485 SE2d 783) (1997); Chandler v. State, 213 Ga. App. 46, 47 (443 SE2d 679) (1994); Moore v. State, 207 Ga. App. 892, 894-895 (429 SE2d 335) (1993).

Especially when the evidence showed that shocks from the gun forced the victim to the floor in pain, and an officer testified that the recovered stun gun was an offensive weapon.