Busch v. State

CARLEY, Justice,

dissenting.

OCGA § 16-11-106 (b) provides that, upon a defendant’s conviction for the crime of possessing a firearm during the commission of a felony, the applicable sentence is “five years, such sentence to run consecutively to any other sentence which the person has received.” (Emphasis supplied.) The issue on certiorari is the meaning of the phrase “any other sentence” as used in this statute. The majority concludes that the statute mandates that the sentence for violating OCGA § 16-11-106 (b) run consecutively only as to the particular felony during the commission of which the defendant possessed the firearm. In my opinion, the clear intent of the statute is to require the imposition of a sentence which runs consecutively to any and all other sentences imposed upon the defendant. Accordingly, I dissent.

The cardinal rule of statutory construction is to ascertain the legislative intent and purpose in enacting the law. Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981). The General Assembly provided that the sentence imposed pursuant to OCGA § 16-11-106 (b) is to run consecutively to “any other sentence,” and did not provide for any exceptions. “Statutes should be read according to the natural and most obvious import of the language, without resort to subtle and forced constructions, for the purpose of either limiting or extending their operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987). If the General Assembly had *596intended that the sentence run consecutive only to sentences for certain specified crimes, it could have so provided. Instead, by indicating that the sentence is consecutive to “any other sentence” without exception, the legislative intent could not be expressed any clearer. Thus, the lack of specification which the majority cites as the basis for its conclusion that the statute is ambiguous is, in fact, the very factor which illustrates the unambiguous legislative intent that a consecutive sentence be imposed for possession of a firearm regardless of the other offenses for which the defendant might receive a sentence. The majority’s forced construction of “any other sentence” in OCGA § 16-11-106 (b) places a limitation on the operation of that statute which is contrary to the General Assembly’s intent that the provision be applied without exception.

Decided November 1, 1999. L. Elizabeth Lane, for appellant.

Although the majority perceives a conflict between OCGA § 16-11-106 (b) and OCGA § 16-11-106 (c), there is no such conflict. Subsection (b) of the statute applies where, as here, the defendant is being sentenced in connection with his first prosecution for commission of the crime or crimes of possession of a firearm. On the other hand, subsection (c) applies where the defendant is a recidivist and is being sentenced for commission of a subsequent firearm possession crime. The sentence authorized under subsection (c) is an entirely separate issue from that presented in this case. Certainly, the recidivist sentencing provision for the crime of possessing a firearm does not conflict with the clear and unambiguous provisions regarding sentencing in the initial prosecution of a defendant for that crime.

“ ‘The construction (of statutes) must square with common sense and sound reasoning.’ [Cit.]” Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (I) (418 SE2d 367) (1992). The legislative intent of OCGA § 16-11-106 (b) is to impose double punishment for possessing a firearm during the commission of a crime. Wilson v. Zant, 249 Ga. 373, 380 (2) (290 SE2d 442) (1982), overruled on other grounds, Morgan v. State, 267 Ga. 203, 204-205 (2) (476 SE2d 747) (1996). And, without exception, the sentence so imposed is to run consecutively to all other sentences received by the defendant. Since the General Assembly has provided no exception, the trial court has no discretion when imposing a sentence pursuant to OCGA § 16-11-106 (b). Because this is precisely what the Court of Appeals held, its ruling in that regard is correct and should be affirmed. Accordingly, I dissent.

I am authorized to state that Justice Hunstein and Justice Thompson join in this dissent.

*597Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.