Cutter v. State, 622 S.E.2d 96 (Ga. Ct. App. 2005). · Go Syfert
Cutter v. State, 622 S.E.2d 96 (Ga. Ct. App. 2005). Cases Citing This Book View Copy Cite
90 citation events (90 in the last 25 years) across 2 distinct courts.
Strongest positive: Alvin Brooks v. State (gactapp, 2024-07-11)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
cited Cited as authority (rule) Alvin Brooks v. State
Ga. Ct. App. · 2024 · confidence medium
SeeCutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited as authority (rule) Warbington v. State (2×)
Ga. · 2018 · confidence medium
(Citations, punctuation and footnotes omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited as authority (rule) William Ira Caldwell v. State
Ga. Ct. App. · 2014 · confidence medium
(Citation and footnote omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005) (When a written sentencing order gives gratuitous misdirection to the correctional custodians regarding the amount of creditable time served, we will “remand the case to the trial court to strike the 3 As the State points out, the running of probation time may be suspended if, inter alia, a probation warrant is returned non est inventus.
discussed Cited as authority (rule) Caldwell v. State (2×)
Ga. Ct. App. · 2014 · confidence medium
(Citation and footnote omitted.) Cutter v. State, 275 Ga. App. 888, 890-891 (2) ( 622 SE2d 96 ) (2005) (When a written sentencing order gives gratuitous misdirection to the correctional custodians regarding the amount of creditable time served, we will “remand the case to the trial court to strike the offending language from the sentencing order.”) (citation and footnote omitted); Johnson v. State, 248 Ga. App. 454, 455 (3) ( 546 SE2d 562 ) (2001) (Where the written sentencing order improperly included the direction, “[n]o credit for time served previously[,]” this Court directed that …
examined Cited as authority (rule) Brian Keith Combs v. State (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2014 · confidence medium
OCGA § 17-10-12” (Citation and punctuation omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
examined Cited as authority (rule) Combs v. State (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2014 · confidence medium
OCGA § 17-10-12.” (Citation and punctuation omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
examined Cited as authority (rule) Allen Adams v. State (4×) also: Cited "see, e.g."
Ga. Ct. App. · 2012 · confidence medium
J., and Dillard, J., concur. 13 See id. 14 See Maldonado v. State, 260 Ga. App. 580, 581 ( 580 SE2d 330 ) (2003). 15 Cutter, supra at 890-891 (2) (citation and footnote omitted). 16 Id. at 891 (2). 17 See id. 18 Adams, supra at 518-519 (2); see Darby v. State, 230 Ga. App. 32, 33 (4) ( 495 SE2d 146 ) (1997) (where defendant knowingly and voluntarily entered into a negotiated plea agreement and accepted the conditions of his probation in open court, he waived the right to challenge on appeal the conditions of his probation). 19 See Ross, supra. 6
cited Cited as authority (rule) Cochran v. State
Ga. Ct. App. · 2012 · confidence medium
(Citation omitted.) Cutter v. State, 275 Ga. App. 888, 890-891 (2) ( 622 SE2d 96 ) (2005).
cited Cited as authority (rule) Howard v. State
Ga. Ct. App. · 2009 · confidence medium
Cutter v. State, 275 Ga. App. 888, 889 (1) ( 622 SE2d 96 ) (2005).
discussed Cited as authority (rule) Williams v. State (2×)
Ga. Ct. App. · 2009 · confidence medium
See also Edwards v. State, 283 Ga. App. 305, 306 ( 641 SE2d 193 ) (2007); Cutter v. State, 275 Ga. App. 888, 890-891 (2) ( 622 SE2d 96 ) (2005); Maldonado v. State, 260 Ga. App. 580 ( 580 SE2d 330 ) (2003); Beasley v. State, 255 Ga. App. 522 ( 566 SE2d 333 ) (2002).
discussed Cited as authority (rule) Tanks v. State
Ga. Ct. App. · 2008 · confidence medium
Miller and Ellington, JJ., concur. 1 OCGA § 16-5-91 (a). 2 Cutter v. State, 275 Ga. App. 888, 889 (1) ( 622 SE2d 96 ) (2005). 3 Perkinson v. State, 273 Ga. 491, 494 (1) ( 542 SE2d 92 ) (2001). 4 United States v. Dixon, 509 U. S. 688, 696 (II) (113 SC 2849, 125 LE2d 556) (1993). 5 Garland v. State, 253 Ga. 789, 790 (1) ( 325 SE2d 131 ) (1985). 6 Garland v. State of Ga., 101 Ga. App. 395, 401 (5) ( 114 SE2d 176 ) (1960). 7 Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932). 8 Daker v. State, 248 Ga. App. 657, 658 (1) ( 548 SE2d 354 ) (2001). 9 State v. Aycock, 283 Ga. App…
examined Cited as authority (rule) Anderson v. State (3×)
Ga. Ct. App. · 2008 · confidence medium
(Citations, punctuation and footnotes omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
cited Cited as authority (rule) Edwards v. State
Ga. Ct. App. · 2007 · confidence medium
(Citations and punctuation omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited as authority (rule) Smashey v. State
Ga. Ct. App. · 2006 · confidence medium
Norman, Assistant District Attorney, for appellee. 1 Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005) (citation and punctuation omitted). 2 Id. 3 Id. (citations and punctuation omitted). 4 Id. at 890-891 . 5 Cf. Johnson v. State, 248 Ga. App. 454, 455-456 (3) ( 546 SE2d 562 ) (2001). 6 See Cutter, supra at 891 .
discussed Cited as authority (rule) Pless v. State
Ga. Ct. App. · 2006 · confidence medium
NOTES [1] Short v. State, 234 Ga.App. 633, 634 (1), 507 S.E.2d 514 (1998). [2] Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). [3] Davis v. State, 238 Ga.App. 84, 88 (5), 517 S.E.2d 808 (1999). [4] In re L.C., 273 Ga. 886, 889 (2), 548 S.E.2d 335 (2001). [5] Lowe v. State, 276 Ga. 538, 539 (2), 579 S.E.2d 728 (2003). [6] Croft v. State, 278 Ga.App. 107, 109 (3), 628 S.E.2d 144 (2006). [7] Hoffer v. State, 192 Ga.App. 378, 380 (1), 384 S.E.2d 902 (1989). [8] Green v. State, 249 Ga.App. 546, 551 (1)(e), 547 S.E.2d 569 (2001). [9] Appling v. State, 246 Ga.App. 556 , 541…
discussed Cited as authority (rule) Croft v. State
Ga. Ct. App. · 2006 · confidence medium
Mikell and Adams, JJ., concur. 1 Short v. State, 234 Ga. App. 633, 634 (1) ( 507 SE2d 514 ) (1998). 2 OCGA§ 40-6-394. 3 OCGA§ 40-6-391 (a)(1). 4 OCGA§ 40-6-391 (a) (5). 5 OCGA § 40-6-390 (a). 6 Woods v. State, 263 Ga. 804, 805 (2) ( 440 SE2d 1 ) (1994). 7 Asberry v. State, 193 Ga. App. 711, 712 (3) ( 389 SE2d 18 ) (1989). 8 Hackett v. State, 272 Ga. App. 196, 199 (3) ( 612 SE2d 54 ) (2005). 9 Wadley v. State, 257 Ga. 280, 281 (2) ( 357 SE2d 588 ) (1987). 10 Kinney v. State, 234 Ga. App. 5, 7 (2) ( 505 SE2d 553 ) (1998). 11 Cutter v. State, 275 Ga. App. 888, 889 (1) ( 622 SE2d 96 ) (2005). …
discussed Cited "see" Sterling Forrest v. State (2×)
Ga. Ct. App. · 2025 · signal: see · confidence high
Doyle, P. J., and Hodges, J., concur. 9 OCGA § 17-10-11 (2010); see Scott v. State, 315 Ga. App. 786, 787 (2) ( 727 SE2d 518 ) (2012). 10 (Citation and punctuation omitted.) Cochran v. State, 315 Ga. App. 488, 490 ( 727 SE2d 125 ) (2012). 11 Compare Kellum, 367 Ga. App. at 745, with Cutter v. State, 275 Ga. App. 888, 890-891 (2) ( 622 SE2d 96 ) (2005). 4
discussed Cited "see" Jemelle Francis v. State (2×)
Ga. Ct. App. · 2022 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005); OCGA § 17-10-12; see also Wilson v. State, 273 Ga. 97, 97 ( 538 SE2d 429 ) (2000) (“The provisions in OCGA §§ 17-10-9; 17-10-11 for crediting prison sentences with time spent in confinement applies only to persons who would not be confined but for the charges which give rise to the sentence for which credit is sought.”) (citation and punctuation omitted). 7
discussed Cited "see" Jamil D. Hayes v. State (2×)
Ga. Ct. App. · 2020 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited "see" Freddy Lester Richards v. State (2×)
Ga. Ct. App. · 2020 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited "see" Brendan Ryan Gates v. State (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited "see" Elijah Profit, III v. State (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited "see" Leroy Banks v. State (2×)
Ga. Ct. App. · 2019 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited "see" Anthony Jackson v. State (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
discussed Cited "see" Stephon Darell Wilson v. State (2×)
Ga. Ct. App. · 2017 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
examined Cited "see" Martin Kendall v. State (3×)
Ga. Ct. App. · 2017 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
examined Cited "see" James Edward Watkins v. State (3×)
Ga. Ct. App. · 2016 · signal: see · confidence high
See Cutter v. State, 275 Ga. App. 888, 890 (2) ( 622 SE2d 96 ) (2005).
cited Cited "see" Robert Duke v. State
Ga. Ct. App. · 2015 · signal: see · confidence high
See Cutter v. State, 275 888 (2) ( 622 SE2d 96 ) (2005).
cited Cited "see" Adams v. State
Ga. Ct. App. · 2012 · signal: see · confidence high
See id.
discussed Cited "see, e.g." Jones v. State (2×)
Ga. Ct. App. · 2007 · signal: see also · confidence medium
See also OCGA§ 16-1-6 (1). 3 (Citation and footnote omitted.) Cutter v. State, 275 Ga. App. 888, 889 (1) ( 622 SE2d 96 ) (2005). 4 (Citation and punctuation omitted.) Chatfield v. State, 279 Ga. App. 32, 36 (2) ( 630 SE2d 178 ) (2006) (no merger where aggravated assault with gun preceded aggravated assault with knife). 5 See id. 6 OCGA§ 16-5-44.1 (d).
Retrieving the full opinion text from the archive…
Cutter
v.
the State
A05A2108.
Court of Appeals of Georgia.
Oct 17, 2005.
622 S.E.2d 96
Gregory N. Crawford, for appellant., Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.
Blackburn, Miller, Bernes.
Cited by 32 opinions  |  Published
Blackburn, Presiding Judge.

Following a jury trial, Vernell Cutter appeals the sentence portion of his conviction for reckless driving and for committing second degree vehicular homicide, contending that the trial court should have merged the two crimes for sentencing purposes and that the court improperly credited the prison time Cutter had served prior to trial. Discerning no error, we affirm.

Construed in favor of the verdict, the evidence shows that while driving his vehicle at an excessive rate of speed (80 mph in a 55-mph zone), Cutter was erratically weaving in and out of traffic during the early morning rush hour on a Georgia interstate freeway. When he came up behind a slower moving tractor-trailer in the right lane, he cut over to the left lane even though a vehicle was dangerously close in the left lane. Cutter lost control of his car and veered left over the grassy median into oncoming traffic, striking an oncoming vehicle head-on and killing its driver. Cutter told police that another vehicle had struck him from behind, causing him to lose control and cross the median. Witnesses contradicted Cutter’s statement.

[*889] • Charged with reckless driving, vehicular homicide in the first degree (based on reckless driving), and making a false statement, Cutter was found guilty only on the reckless driving charge and on a lesser-included charge of second degree vehicular homicide based on improper lane change. The court sentenced him to two consecutive sentences of twelve months each, with nine months to serve and fifteen months on probation. The court orally and in its written sentencing order stated that Cutter was to receive credit for the nine months he had served while awaiting trial. Following the denial of his motion for new trial, he appeals the sentencing portion of his conviction.

1. Cutter first contends that the court should have merged his two crimes for sentencing purposes. Citing OCGA § 16-1-6, he argues that the reckless driving offense was for all practical purposes an underlying offense for the vehicular homicide offense and in any case relied on the same facts as the vehicular homicide offense. We review this legal issue de novo. Wofford v. State. 1

Cutter’s argument is belied by the record and by the law. First, the underlying offense for the vehicular homicide conviction was not reckless driving (which cannot serve as the underlying offense for second degree vehicular homicide — see McKinney v. State 2 ), but was improper lane change as expressly found by the jury. Second, there was no factual merger of the crimes under OCGA§ 16-1-6. Determining whether there was a factual merger of the crimes requires an examination of the actual evidence introduced at trial to decide whether the reckless driving crime was established by proof of the same or less than all the facts required to establish the elements of second degree vehicular homicide. See Brewster v. State. 3 “If the [SJtate uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” Brewster, supra.

The State does not use up all the evidence in establishing the first crime where the crimes are separate and sequential. King v. State. [4] See Robinson v. State 5 (“[i]f one crime is complete before the other takes place, the two crimes do not merge”) (punctuation omitted). Here, the State proved the reckless driving offense based on Cutter’s erratic, high-speed weaving through rush hour traffic (see OCGA § 40-6-390 (a)), which took place prior to his decision to change lanes improperly by dangerously cutting around the tractor-trailer in front[*890] of a nearby vehicle and losing control, resulting in the vehicular homicide. See OCGA § 40-6-123 (a). Thus, this case is very similar to Hamby v. State, 6 where the defendant Hamby claimed the offense of speeding should have merged into the second degree vehicular homicide offense based on failure to exercise due care for pedestrians in the roadway. Hamby held: “Since speeding was a separate and distinct offense that had already occurred before the offense of failure to exercise due care for pedestrians in the roadway, this evidence permitted the trial court to sentence Hamby on both the homicide offense based on failure to exercise due care for pedestrians and the speeding offense.” Hamby, supra. We hold similarly here.

2. Cutter complains that the trial court improperly credited the nine months prison time he had already served by crediting that time only once against the entire twenty-four month sentence so as to result in fifteen months probation remaining on the sentence. Citing no supporting authority, Cutter argues that the court should have credited the nine months against each twelve-month sentence separately, so that only three months probation remained on each sentence (for an aggregate remaining sentence of six months probation).

Without considering the merits of Cutter’s argument, we hold that this issue is not properly before us. Although under OCGA § 17-10-11 (a) a convict should be given credit for time spent in confinement awaiting trial, “the amount of credit is to be computed by the convict’s pre-sentence custodian, and the duty to award the credit for time served prior to trial is upon the Department of Corrections. OCGA § 17-10-12.” (Punctuation omitted.) Warren v. State. 7 “The trial court is therefore not involved in this matter.” Diaz v. State. 8 If aggrieved by the calculations in awarding credit, Cutter “should have sought relief from the Department of Corrections.” Warren, supra. Dissatisfaction with that relief would not be a part of his direct appeal from his original conviction but would be “in a mandamus or injunction action against the Commissioner of the Department of Corrections.” Maldonado v. State. 9 See, e.g., Bryant v. Evans [10] (appeal from mandamus action against Commissioner of Department of Corrections for allegedly improperly crediting time served).

The only time we consider such arguments in a direct appeal from the original conviction is where the trial court in its written sentencing order gives gratuitous misdirection to the correctional[*891] custodians. See, e.g., Sanford v. State. 11 In such cases, we simply remand the case to the trial court to strike the offending language from the sentencing order. Id. See Johnson v. State. 12 Here, however, the trial court in its written sentencing order correctly stated that Cutter was to receive “[c]redit for time served from 8-21-03 through 5-24-04,” giving no further direction. As this generic statement was undisputedly correct, we have no reason to direct the trial court to strike any language.

Decided October 17, 2005. Gregory N. Crawford, for appellant. Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Bernes, JJ., concur.
1

Wofford v. State, 226 Ga. App. 487, 489 (1) (486 SE2d 697) (1997).

2

McKinney v. State, 204 Ga. App. 323, 324 (1) (419 SE2d 339) (1992),

3

Brewster v. State, 261 Ga. App. 795, 799 (2) (584 SE2d 66) (2003).

4

King v. State, 209 Ga. App. 529, 532 (4) (433 SE2d 722) (1993).

5

Robinson v. State, 271 Ga. App. 768, 769 (1) (610 SE2d 706) (2005).

6

Hamby v. State, 256 Ga. App. 886, 888 (3) (570 SE2d 77) (2002).

7

Warren v. State, 246 Ga. App. 894 (543 SE2d 38) (2000).

8

Diaz v. State, 245 Ga. App. 380, 381 (2) (537 SE2d 784) (2000).

9

Maldonado v. State, 260 Ga. App. 580, 581 (580 SE2d 330) (2003).

10

Bryant v. Evans, 244 Ga. 673 (261 SE2d 620) (1979).

11

Sanford v. State, 251 Ga. App. 190, 191 (553 SE2d 854) (2001).

12

Johnson v. State, 248 Ga. App. 454, 456 (3) (546 SE2d 562) (2001).