Scott v. State , 356 Ga. App. 152, 154-155 (5), 846 S.E.2d 241 (2020) (citation, punctuation and footnote omitted).Busby v. State , 332 Ga. App. 646, 650 (2) (b), 774 S.E.2d 717 (2015) (citation and punctuation omitted).Hogg v. State , 356 Ga. App. 11, 16 (2) (b), 846 S.E.2d 183 (2020) (citation and punctuation omitted); see Notes and Comments, Twice in Jeopardy , 75 Yale L. J. 262, 312-313 (December, 1965) ("In cases involving repeated violations of a single statute, the courts have used the term unit of prosecution to mean the offense which the legislature intended to create.") (punctuation and footnote omitted).
Scott v. State , 306 Ga. 507, 509 (2), 832 S.E.2d 426 (2019). See also Busby v. State , 332 Ga. App. 646, 650 (2) (b), 774 S.E.2d 717 (2015) ("Typically, the question is whether the same conduct may be punished under different criminal statutes. In that situation, it is appropriate to apply the ‘required evidence’ test[;] [h]owever, a different question is presented here: whether a course of conduct can result in multiple violations of the same statute[, which] requires a determination of the ‘unit of prosecution....’ ") (Citation and punctuation omitted.)
We have found no Georgia appellate cases identifying the unit of prosecution established by this Code section. But in Busby v. State , 332 Ga. App. 646, 774 S.E.2d 717 (2015), we construed the similarly worded aggravated battery statute, OCGA § 16-5-24 (a), which states that "[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof." We held in Busby that
As recounted above, the evidence plainly showed that Fossier molested the child by committing four distinct acts of oral sodomy. Compare Scott , supra at 160, 846 S.E.2d 241 (no evidence to establish that the defendant molested the victim in separate acts). "Thus, under the facts of this case, each act [of sodomy] form[ed] a [separate offense] under [ OCGA § 16-6-4 (c).]" Busby v. State , 332 Ga. App. 646, 651 (2) (b), 774 S.E.2d 717 (2015) (involving acts of aggravated battery under OCGA § 16-5-24 (a) ). Because the four distinct acts of oral sodomy did not merge into a single offense, "we affirm the trial court's ruling."
OCGA § 16-5-70 (b). Accord Busby v. State , 332 Ga. App. 646, 651 (2) (b), 774 S.E.2d 717 (2015) (ascertaining a unit of prosecution for purposes of the aggravated battery statute). In one count of the indictment, McDaniel was accused of "tying the victim up in the garage" "between the 1st day of January, 2018, and the 1st day of May, 2018, the exact date of the offense being unknown"; in the other count, she was accused of "keeping him in a garage which was not temperature controlled" during the same time frame.
See alsoDavis v. Riedman, 114 N.W.2d 881, 884 (N.D. 1962) ("As a general rule, if the law prescribes a place of imprisonment, the court cannot direct a different place, and if it does so, the sentence is void ..."); Kaiser v. State, 285 Ga.App. 63, 646 S.E.2d 84, 87 (2007) (quoting Mullins v. State, 134 Ga.App. 243, 214 S.E.2d 1, 1 (1975) ) ("A sentence entered in a criminal case which is unauthorized by law is a nullity and void."); Hart v. State, 481 S.W.3d 679, 685 (Tex. Crim. App. 2015) (citations omitted) ("A sentence outside the range of punishment authorized by law is an illegal sentence ... which is void and must be reversed."); State v. McBride, 252 Neb. 866, 567 N.W.2d 136, 145 (1997) ("A sentence imposed without a legal basis is void."); Busby v. State, 332 Ga.App. 646, 774 S.E.2d 717, 720 (2015) (citations omitted) ("[A] judgment of sentence is void where it imposes an illegal sentence ... the illegality of such a judgment is not a waivable issue."); U.S. v Ramey, 503 F.Supp. 24, 25 (E.D. Tenn. 1980) (citations omitted) ("Being illegal, such sentence is void, and the Court has the power and the duty to expunge the void sentence and, at the appropriate time, pronounce a lawful sentence on such defendant."); State v. Louisell, 865 N.W.2d 590, 597 (Iowa 2015) (citing State v. Ross, 729 N.W.2d 806, 809 (Iowa 2007) and State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005) ) ("[S]entences imposed without statutory authorization are illegal and void."); 21 Am. Jur. 2d Criminal Law § 735 ("An illegal sentence is generally considered void[.]").