Zamudio v. State

Full title: Zamudio v. The State.

Court: Court of Appeals of Georgia.

Date published: Jun 9, 2016

337 Ga. App. 531 (Ga. Ct. App. 2016)

786 S.E.2d 569

Opinion

A16A0547

06-09-2016

Zamudio v. The State.

Michael Robert McCarthy, for Appellant.   Susan Franklin, Dixon Alexander Lackey III, Asst. Dist. Attys., Herbert McIntosh Poston Jr., Dist. Atty., Victoria Keely Parker, Asst. Dist. Atty., for Appellee.

Doyle, Chief Judge.

Michael Robert McCarthy, for Appellant. Susan Franklin, Dixon Alexander Lackey III, Asst. Dist. Attys., Herbert McIntosh Poston Jr., Dist. Atty., Victoria Keely Parker, Asst. Dist. Atty., for Appellee.

Doyle, Chief Judge. This is the second appearance of this case before this Court. In 2015, this Court affirmed the judgments of conviction of Antonio Jesus Zamudio and his co-defendant for attempted murder,¹ aggravated assault,² aggravated battery,³ and a violation of the Georgia Street Gang Terrorism and Prevention Act, OCGA §§ 16–15–4 (a), 16–15–3 (1) (J) ( “Street Gang Act”).⁴ This Court vacated the defendants' sentences and remanded for resentencing after holding that the trial court erred by merging the defendants' aggravated battery counts into the attempted murder counts.⁵ Having been resentenced, Zamudio appeals, arguing that the trial court erred by failing to merge the aggravated battery count into the gang activity count. For the reasons that follow, we affirm.

1 OCGA §§ 16–4–1, 16–5–1 (a).

2 OCGA § 16–5–21 (b) (2).

3 OCGA § 16–5–24 (a).

4 See Zamudio v. State , 332 Ga.App. 37, 771 S.E.2d 733 (2015).

5 See id. at 48(7), 771 S.E.2d 733.

After remand, the trial court held a resentencing hearing and merged Count 2 (Criminal Attempt to Commit Murder) and Count 3 (Aggravated Assault) into Count 4 (Aggravated Battery). At the resentencing hearing, Zamudio argued that Count 4 (Aggravated Battery) should merge into Count 1 (Violation of the Street Gang Act) because Count 4 was a predicate act for Count 1. The trial court declined to merge the counts, sentencing Zamudio to 20 years to serve 10 in incarceration for Count 1 and 15 years to serve 10 in incarceration for Count 4 to run concurrent to Count 1.

Zamudio argues that the trial court erred by declining to merge Count 4 into Count 1. He maintains that the legislature failed to include language prohibiting courts from merging gang activity convictions, and therefore, the general rules of merger as required under Drinkard v. Walker,⁶ and as codified in OCGA § 16–1–7 apply to require merger in this case.

6 281 Ga. 211, 215, 217, 636 S.E.2d 530 (2006).

After briefing in this case, this Court decided Nolley v. State,⁷ in which this Court held that by enacting OCGA § 16–15–4 (m), the Legislature had determined that predicate acts for any offenses listed in the Street gangs Act do not merge with the separately charged violation of the Street gangs Act.⁸ Accordingly, this enumeration is without merit.

7 335 Ga.App. 539, 782 S.E.2d 446 (2016).

8 See id. at 544–545(2), 782 S.E.2d 446.

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Judgment affirmed.

Andrews, P.J., and Ray, J., concur.