concurring in part and dissenting in part.
I concur in all but that portion of Division 1 (a) dealing with the remand to the trial court for the purpose of resentencing McClellan for the felony murder of the three-year-old child. I submit that such disposition is contrary to Thompson v. State, 263 Ga. 23, 24 (2) (426 SE2d 895) (1993), which is controlling precedent. Under Thompson and its progeny, this Court, not the trial court, must determine which of the convictions and sentences stand and which fall.
The grand jury indicted McClellan on three alternative counts of felony murder and three additional counts which charged him with the underlying felonies independently. Compare Harris v. State, 274 Ga. 835 (561 SE2d 73) (2002). Because there was only one homicide victim, McClellan can be sentenced for only one count of murder. Based upon the verdicts, it is uncertain which of the three felonies should serve as the predicate for the murder conviction, because the jury found him guilty on all three counts rather than specifying only one. In addressing this issue, the majority concludes that Thompson is distinguishable, because there “the Court was faced with a jury verdict that was ambiguous because the jury did not specify which of two or more felonies served as the predicate felony of the felony murder conviction returned by the jury.” That is an erroneous reading of Thompson. In that case, we clearly identified
[t]he problem [as] how to determine which of two or more felonies should merge where: (1) as here, the jury specifies two or more as underlying a felony murder conviction; or (2) where the jury does not specify which are underlying felonies, but the evidence shows, and the jury convicts the *823defendant, of two or more felonies which could serve to support a felony murder conviction.
(Emphasis supplied.) Thompson, supra at 25 (2). Thus, it was in both of “these circumstances, [that] an ambiguity [exists] which must be construed in the defendant’s favor. [Cit.]” Thompson, supra at 25 (2). On its facts, Thompson dealt with the first “circumstance” involving the jury’s specification of more than one predicate felony. That is precisely the same ambiguity which exists in this case. While Thompson may be overruled, it simply cannot be distinguished notwithstanding the majority’s attempt to do so.
Prior to Thompson, this Court had “applied a ‘chain of circumstances’ analysis, to hold that the initial felony which began the ‘chain of circumstances’ leading to the victim’s death merged with the murder conviction. [Cits.]” Thompson, supra at 25 (2). However, in Thompson, supra at 25 (2), we expressly rejected that analysis because it was “purely speculative in determining what in fact the jury intended as the underlying felony.” The unanimous conclusion of this Court was that, in a case such as this, “there is no logical rule to be applied in making a determination regarding the jury’s intent. Accordingly, there is, in these circumstances, an ambiguity which must be construed in the defendant’s favor. [Cit.]” Thompson, supra at 25 (2). The rule which all Justices adopted to resolve that ambiguity was, “where it is unclear which of two or more felonies is the underlying felony for a felony murder conviction, the trial court must merge the most severe (in terms of potential punishment).” (Emphasis supplied.) Thompson v. State, supra at 25 (2). See also Coe v. State, 274 Ga. 265, 266 (2) (553 SE2d 784) (2001); Briscoe v. State, 263 Ga. 310 (2) (431 SE2d 375) (1993). The majority holds that Coe “should not be misconstrued as establishing a policy of appellate sentencing. . . .” In fact, the only correct construction of Coe is that it properly adhered to the policy of appellate correction of sentencing errors established by Thompson and consistently followed until today.
It is clear that controlling authority compels us to hold that, “[w]here a jury specifies two or more felonies as underlying the murder conviction, the most severe felony must merge. [Cit.]” Dunn v. State, 263 Ga. 343, 344-345 (2) (434 SE2d 60) (1993). Merging the felony with the most severe punishment benefits the accused, because each unmerged offense will support a separate sentence that is less severe than the one underlying and merged into the only remaining felony murder conviction. This requirement of merging the more severe felony is a specific application of the rule of lenity generally recognized in criminal cases. ‘ “ ‘ “Where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have *824the lesser of two penalties administered.’ ” (Cit.)’ [Cit.]” Chandler v. State, 257 Ga. 775, 776 (364 SE2d 273) (1988).
Here, the three underlying felonies were two counts of cruelty to children and one count of aggravated battery. Of those offenses, child cruelty is the more severe, as it carries a minimum sentence of five years, whereas the minimum sentence for aggravated battery is three years. OCGA §§ 16-5-24 (h), 16-5-70 (d). Thus, McClellan’s felony murder conviction must rest on one of the two cruelty to children counts, whereas that based upon the aggravated battery must be vacated. The separate count charging aggravated battery by rendering the child’s liver useless merged, as a matter of fact, into the count charging the offense of cruelty to children by lacerating the victim’s liver. See Etchinson v. State, 245 Ga. App. 449, 450 (2) (538 SE2d 87) (2000). The aggravated battery evidence was completely “used up” in proving that cruelty to children charge because that crime required additional proof of the age of the victim. However, the separate count charging McClellan with child cruelty by hitting the child about his body does not merge with any other, because it rests on an independent set of facts.
The trial court imposed the mandatory life sentence on the felony murder counts and the maximum 20-year sentence on both of the cruelty to children counts. Thus, the proper disposition of this case under Thompson is an affirmance of the life sentence for one count of felony murder in the commission of cruelty to children and the 20-year sentence for one count of child cruelty, with direction that all remaining convictions and sentences be vacated. See Coe v. State, supra at 266 (2). Because the sentences for the felony murder counts and the two cruelty to children counts are identical, it is immaterial which of those counts support the convictions and which the trial court vacates.
Notwithstanding the controlling authority discussed above, a majority of this Court today ignores that precedent, and leaves the resentencing of McClellan as a matter for the trial court’s discretion. However, that is precisely the type of subjective resolution to the merger problem that we unanimously rejected in Thompson. The verdict in this case does not specify one predicate felony for the murder conviction, and reliance upon the trial court’s unfettered discretion to determine which felony will serve that purpose is no more objective or logical than the discarded “chain of circumstances” analysis. A trial court’s discretion must be circumscribed by applicable legal principles and exercised within appropriate lawful bounds. Certainly, a trial court has discretion to determine the length of the sentence when a defendant is convicted of certain crimes. However, a trial court does not have discretion to pick and choose which offenses will support a conviction and sentence. Traditionally, the merger of *825convictions has been considered a question of law, to which an appellate court applies a de novo standard of review. This differs fundamentally from other aspects of sentencing which are within the trial court’s discretion, such as the length of the sentence and conditions of any probation. However, today’s opinion represents a dramatic shift in treatment of the merger issue, so that it is now a matter within the trial court’s subjective discretion and no longer an objective question of law. In my opinion, this judicial recasting of merger from a legal question subject to de novo review into a review of the exercise of discretion by the trial court is ill advised, particularly when the majority fails to state specifically how to determine what constitutes an abuse of the newly-granted discretion.
The majority presumably is motivated by a belief that the trial courts of this state will welcome today’s decision investing them with discretion in sentencing. In my opinion, that belief is misplaced. First, all future cases, such as this, in which the trial court enters multiple felony murder convictions for a single homicide will now be subject to a remand for additional resentencing. That will necessitate a new hearing and the entry of an appropriate order. The defendant will have the right to file a new appeal and, consequently, the final disposition of the proceedings will be postponed. Such delay would be completely unnecessary if this Court continued to apply the bright-line rule established in Thompson. By following that procedure, the only additional requirement that is ever imposed upon the overworked trial courts of this state is the administrative task of making the judgment of this Court the judgment of the trial court. Moreover, there will be no finality even in a future case wherein the trial court undertakes to exercise the authority granted today. The majority confers discretion, but does not attempt to establish the parameters within which it can be exercised. With no standards, a trial court can never be sure that it has not abused its sentencing discretion until this Court eventually addresses the matter on appeal. In that connection, I submit that an alleged abuse of discretion is surely subject to being raised in each case in which the trial court performs the new task assigned to it today. In my opinion, there is no logical reason to create yet another possible ground for reversal of a trial court, especially a ground as amorphous as the blanket grant of discretion that is conferred by the majority. To the contrary, the concept of judicial economy supports continued adherence to Thompson and its progeny, whereby this Court merges the most severe felony and gives direction as to the proper disposition by the trial court. Coe v. State, supra.
Most assuredly, the trial courts always have discretion to determine the length of sentences for certain crimes and to decide whether the defendant should serve part or all of that sentence on probation. *826However, duly enacted statutes establish clear parameters for the trial court’s exercise of that discretion. Today, the majority grants additional discretionary sentencing authority, but does not establish any criteria for its exercise. In my opinion, the rules previously recognized and applied by this Court should continue to provide a valid and objective limitation on the discretionary authority of the trial court to sentence for one felony murder that is supported by multiple predicate felonies. The rules of merger permit only one conviction and sentence for a single crime and all included offenses. The rule of lenity requires that, where more than one felony is specified as the predicate for a felony murder, the most severe felony support the murder conviction. Because the majority fails to apply those principles in this case, I dissent.
Decided March 11, 2002. Schoolcraft & Watkins, Stanley W. Schoolcraft III, for appellant. Robert E. Keller, District Attorney, Jay M. Jackson, Assistant District Attorney, Thurbert E. Baker, Attorney General, Madonna M. Heinemeyer, Assistant Attorney General, for appellee.I am authorized to state that Chief Justice Fletcher and Presiding Justice Sears join in this opinion.