The Court granted Cert in three new cases today. The first deals with the proper analysis for when multiple counts of the same crime "merge" for purposes of sentencing (as opposed to multiple charges of different substantive crimes); the second deals with the proper standard to be applied in legitimation petions; and the third deals with whether a person who is brought into a jail in the custody of an officer can be charged with a separate crime for bringing a controlled substance into the facility, despite the fact that they did not enter voluntarily.
The Court granted Scott's petition for certiorari, unanimously vacated the decision below, and remanded the case ("Grant Vacate and Remand" or "GVR") directing the Court of appeals to apply the proper test for when separately charged crimes "merge" for sentencing purposes. “Merger” refers generally to situations in which a defendant
is prosecuted for and determined by trial or plea to be guilty of
multiple criminal charges but then, as a matter of substantive
double jeopardy law, can be punished – convicted and sentenced –
for only one of those crimes. See generally OCGA § 16-1-7 (a). Merger analysis usually applies where two separate crimes have been charged, but also come up where a defendant is charged with multiple counts of the same crime. In the latter context, the analysis depends on whether the counts are separate or distinct "units of prosecution," not, as in the contexts of separate types of crimes, whether the charges rely on the same "required evidence."
Justice Peterson joined the GVR, but wrote separately to express the view that a the issue of whether the trial court had denied the petitioner his right to a public trial should be addressed in a future case where it was properly preserved.
Both the order and the concurrence are available here.
MATHENIA et al. v. BRUMBELOW
The case involves a petition by Brumelow to legitimate his paternity of his biological son, which was denied by the trial court on the basis that he had abandoned his "opportunity interest" in developing a relationship with the child. Appellate courts review a trial court’s ruling on a legitimization petition for an abuse of
discretion, and its factual findings for “clear error and will only sustain such findings
if there is competent evidence to support them.”
The questions presented in the case are:
1. Did the Court of Appeals err in reversing the trial court’s
finding that Respondent had abandoned his opportunity
interest?
2. If not, did the Court of Appeals err in concluding that
Respondent’s legitimation petition must be assessed on
remand under the parental fitness standard rather than the
best interests standard?
Justices Peterson and Blackwell dissented from the grant of certiorari. The full Court of Appeals opinion is available here.
The case will be added to the December 2019 Oral Argument Calendar.
FOWLE v. THE STATE
Fowle v. State asks whether a person with marijuana on his person who is brought into a jail in the custody of an officer may be charged with the separate crime of bringing a controlled substance "inside the guard lines" without the Warden's permission, and, if so, whether the person is compelled to incriminate himself in violation of the US and Georgia Constitutions?
The Court of Appeals below held that such a person can be charged with the separate crime, reasoning that the language of the relevant statute (OCGA 42-5-15) does not contain any voluntariness requirement. Further, doing so does not violate either constitutional self-incrimination provision, because "although [the petitioner] claims that the arresting officer
presented him with the untenable choice of incriminating himself or facing a felony
charge under OCGA § 42-5-15 . . . [t]he
officer merely apprised Fowle of the legal consequences he potentially faced by
bringing marijuana into the jail, information that does not constitute a threat or
coercion."
The questions presented in the order granting certiorari are:
1. Does a person "come inside the guard lines" of a correctional
institution for the purposes of OCGA § 42-5-15 when he comes
inside the guard lines in the custody of a law enforcement officer?
2. If so, does OCGA § 42-5-15 compel such a person, to the extent
that he is in possession of marijuana or other contraband, to incriminate himself in violation of his constitutional privilege
against self-incrimination? See U.S. Const.,Amend. V; Ga. Const.
of 1983, Art.I, Sec I, Par. XVI.
3. Did the trial court err when it dismissed Count 1 of the
indictment?
Three justices dissented from the grant of certiorari, including Boggs, Peterson, and
Ellington.
The case has been added to the December 2019 Oral Argument Calendar. The full Court of Appeals opinion is available here.
Denied
S18C1201. THE STATE v. RAY (A18A0333)
S19C0475. GENS v. WHITE et al. (A18A0992)
S19C0502. PEACHTREE PLAYTHINGS, INC. v. D.J. POWERS COMPANY, INC. (A18A1305)
S19C0507. COBB v. THE STATE (A18A1018)
S19C0513. VASQUEZ v. THE STATE (A18A1016)
S19C0531. JESCHKE et al. v. TURNSTONE GROUP, LLC et al. (A18A1175)
S19C0545. TURNBULL v. THE STATE (A19D0142)
S19C0547. ROBINSON v. THE STATE (A18A1819)
S19C0551. STRAUCH v. THE STATE (A19A0623)
S19C0574. HUTCHINSON v. THE STATE (A19I0115)
S19C0593. EAST GEORGIA REGIONAL MEDICAL CENTER, LLC et al. v. ROBERTS (A19I0076)
S19C0697. EPPS v. THE STATE (A19A1032)
S19C0703. COBBLE v. FACHINI (A19D0233)
S19C0475. GENS v. WHITE et al. (A18A0992)
S19C0502. PEACHTREE PLAYTHINGS, INC. v. D.J. POWERS COMPANY, INC. (A18A1305)
S19C0507. COBB v. THE STATE (A18A1018)
S19C0513. VASQUEZ v. THE STATE (A18A1016)
S19C0531. JESCHKE et al. v. TURNSTONE GROUP, LLC et al. (A18A1175)
S19C0545. TURNBULL v. THE STATE (A19D0142)
S19C0547. ROBINSON v. THE STATE (A18A1819)
S19C0551. STRAUCH v. THE STATE (A19A0623)
S19C0574. HUTCHINSON v. THE STATE (A19I0115)
S19C0593. EAST GEORGIA REGIONAL MEDICAL CENTER, LLC et al. v. ROBERTS (A19I0076)
S19C0697. EPPS v. THE STATE (A19A1032)
S19C0703. COBBLE v. FACHINI (A19D0233)
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