conviction instruction in Georgia

2024We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b), and looked to federal cases which articulated and applied the plain error standard found in that Rule.” Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently grappled with this question in Miles v. 5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

2024We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b), and looked to federal cases which articulated and applied the plain error standard found in that Rule.” Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently grappled with this question in Miles v. 5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

2024We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b), and looked to federal cases which articulated and applied the plain error standard found in that Rule.” Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently grappled with this question in Miles v. 5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

2024We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b), and looked to federal cases which articulated and applied the plain error standard found in that Rule.” Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently grappled with this question in Miles v. 5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

2022The trial court correctly found that this sentence was void because under OCGA § 16-10-24 (b) the maximum sentence for obstruction of an officer is five years.13 However, although the sentence was void, “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”14 In the present matter, Hutcheson’s conviction for obstruction of an officer constituted a felony,15 and there was no assertion that his guilty plea was invalid or that there were grounds to reverse his conviction.16 Moreover, OCGA § 17- 13 See von Thomas v. State, 293 Ga. 569, 571 (2)

2022The trial court correctly found that this sentence was void because under OCGA § 16-10-24 (b) the maximum sentence for obstruction of an officer is five years.13 However, although the sentence was void, “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”14 In the present matter, Hutcheson’s conviction for obstruction of an officer constituted a felony,15 and there was no assertion that his guilty plea was invalid or that there were grounds to reverse his conviction.16 Moreover, OCGA § 17- 13 See von Thomas v. State, 293 Ga. 569, 571 (2)

2013Terry v. State, 291 Ga. 508 (2) ( 731 SE2d 669 ) (2012).

2013Terry v. State, 291 Ga. 508 (2) ( 731 SE2d 669 ) (2012).

2015See Harper v. State, 286 Ga. 216, 217-218 (1) ( 686 SE2d 786 ) (2009) (Under Georgia law, a petition to vacate a judgment of conviction in a criminal case is not an authorized remedy, hut a petition to modify a sentence on the ground that it is void is permitted.

2015See Harper v. State, 286 Ga. 216, 217-218 (1) ( 686 SE2d 786 ) (2009) (Under Georgia law, a petition to vacate a judgment of conviction in a criminal case is not an authorized remedy, hut a petition to modify a sentence on the ground that it is void is permitted.

2015See Hulett v. State, 296 Ga. 49, 54 (2) ( 766 SE2d 1 ) (2014) (holding that this Court should direct the trial court to correct the erroneous vacating or merging of a conviction where the error is apparent on appeal, regardless of whether the matter is raised by the State on appeal).

2015See Hulett v. State, 296 Ga. 49, 54 (2) ( 766 SE2d 1 ) (2014) (holding that this Court should direct the trial court to correct the erroneous vacating or merging of a conviction where the error is apparent on appeal, regardless of whether the matter is raised by the State on appeal).

2013Because Marshall did not object to the jury charges at trial, we review his contention on appeal for “plain error.” “The plain error test . . . authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction 5 likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” (Citation omitted.) Holloman v. State, 293 Ga. 151, 152 (2) ( 744 SE2d 59 ) (2013).

2013Because Marshall did not object to the jury charges at trial, we review his contention on appeal for “plain error.” “The plain error test . . . authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction 5 likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” (Citation omitted.) Holloman v. State, 293 Ga. 151, 152 (2) ( 744 SE2d 59 ) (2013).

2025See Higuera-Guiterrez, 298 Ga. at 42-44 (reversing the defendant’s convictions for felony murder and other crimes because the evidence—which indicated that he lived near the crime scene and that after a shootout following an exchange of drugs, he retrieved drugs that had been left behind— was not sufficient to establish that he was a party to the crimes and instead showed, at best, that he was an accessory after the fact).

2024We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b), and looked to federal cases which articulated and applied the plain error standard found in that Rule.” Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently grappled with this question in Miles v. 5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

2024We acknowledge, however, some confusion about whether and how to apply Stonaker (and its progeny) in the wake of State v. Kelly, 290 Ga. 29, 31-32 (718 SE2d 232) (2011), in which “this Court noted the similarities between OCGA § 17-8-58 (b) and Federal Rule of Criminal Procedure 52 (b), and looked to federal cases which articulated and applied the plain error standard found in that Rule.” Cheddersingh v. State, 290 Ga. 680, 683 (724 SE2d 366) (2012).5 The Court of Appeals recently grappled with this question in Miles v. 5 See Smith v. State, 292 Ga. 316, 319 (737 SE2d 677) (2013) (“The ‘plain

2022The trial court correctly found that this sentence was void because under OCGA § 16-10-24 (b) the maximum sentence for obstruction of an officer is five years.13 However, although the sentence was void, “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”14 In the present matter, Hutcheson’s conviction for obstruction of an officer constituted a felony,15 and there was no assertion that his guilty plea was invalid or that there were grounds to reverse his conviction.16 Moreover, OCGA § 17- 13 See von Thomas v. State, 293 Ga. 569, 571 (2)

2022The trial court correctly found that this sentence was void because under OCGA § 16-10-24 (b) the maximum sentence for obstruction of an officer is five years.13 However, although the sentence was void, “[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”14 In the present matter, Hutcheson’s conviction for obstruction of an officer constituted a felony,15 and there was no assertion that his guilty plea was invalid or that there were grounds to reverse his conviction.16 Moreover, OCGA § 17- 13 See von Thomas v. State, 293 Ga. 569, 571 (2)

2020Even assuming that the trial court erred in not charging the jury on impeachment by a prior conviction, however, “the attendant failure of the trial court to give the charge requested was harmless error because it is not highly probable that the error contributed to the verdict.” Cannon v. State, 302 Ga. 327, 330-331 (3) ( 806 SE2d 584 ) (2017). “[D]espite not having specific instructions on impeachment by conviction, the trial court did properly instruct the jury on impeachment in general,” id. at 331 (3), explaining to the jury that they could consider evidence that was offered to attack a w

2020Even assuming that the trial court erred in not charging the jury on impeachment by a prior conviction, however, “the attendant failure of the trial court to give the charge requested was harmless error because it is not highly probable that the error contributed to the verdict.” Cannon v. State, 302 Ga. 327, 330-331 (3) ( 806 SE2d 584 ) (2017). “[D]espite not having specific instructions on impeachment by conviction, the trial court did properly instruct the jury on impeachment in general,” id. at 331 (3), explaining to the jury that they could consider evidence that was offered to attack a w

2020See Mike v. State, 290 Ga. App. 214, 215 (1) ( 659 SE2d 664 ) (2008) (“the plain language of [OCGA § 42-8-35.2] requires that a term of special probation be served ‘in addition to any term of imprisonment’ rendered under OCGA § 16-13-30 (d)”).

2020See Mike v. State, 290 Ga. App. 214, 215 (1) ( 659 SE2d 664 ) (2008) (“the plain language of [OCGA § 42-8-35.2] requires that a term of special probation be served ‘in addition to any term of imprisonment’ rendered under OCGA § 16-13-30 (d)”).

2018See Moret v. State , 246 Ga. 5 , 5-6 (3), 268 S.E.2d 635 (1980) ; Head v. State , 233 Ga. App. 655 , 658 (3) (b), 504 S.E.2d 499 (1998) ; Walker v. State , 204 Ga. App. 269 , 269, 419 S.E.2d 542 (1992).

2018See Moret v. State , 246 Ga. 5 , 5-6 (3), 268 S.E.2d 635 (1980) ; Head v. State , 233 Ga. App. 655 , 658 (3) (b), 504 S.E.2d 499 (1998) ; Walker v. State , 204 Ga. App. 269 , 269, 419 S.E.2d 542 (1992).

2016He does not challenge the trial court’s judgment of conviction, but essentially asks the trial court to remove a sentencing provision (i.e., the prohibition against exoneration and discharge), which is not authorized under Georgia law. 8 See Spargo v. State, 332 Ga. App. 410, n. 1 ( 773 SE2d 35 ) (2015) (“[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same”).

2016He does not challenge the trial court’s judgment of conviction, but essentially asks the trial court to remove a sentencing provision (i.e., the prohibition against exoneration and discharge), which is not authorized under Georgia law. 8 See Spargo v. State, 332 Ga. App. 410, n. 1 ( 773 SE2d 35 ) (2015) (“[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same”).

2015See Rooney v. State, 287 Ga. 1, 2 (2) ( 690 SE2d 804 ) (2010) (“[A] sentencing court retains jurisdiction to correct a void sentence at any time.”) (citations and punctuation omitted); State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011) (“[A] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”) (footnote omitted).

2015See Rooney v. State, 287 Ga. 1, 2 (2) ( 690 SE2d 804 ) (2010) (“[A] sentencing court retains jurisdiction to correct a void sentence at any time.”) (citations and punctuation omitted); State v. Green, 308 Ga. App. 33, 34-35 (1) ( 706 SE2d 720 ) (2011) (“[A] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same.”) (footnote omitted).

2013Accord Armour v. State, 315 Ga. App. 745, 748 (2) ( 728 SE2d 270 ) (2012). 14 Bolden, supra; Armour, supra. 15 Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011). 16 Id. at 175 (4). 8 The “plain error” test adopted by our Supreme Court in State v. Kelly17 gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.18 Even if we assume that trial counsel’s state

2013Accord Armour v. State, 315 Ga. App. 745, 748 (2) ( 728 SE2d 270 ) (2012). 14 Bolden, supra; Armour, supra. 15 Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011). 16 Id. at 175 (4). 8 The “plain error” test adopted by our Supreme Court in State v. Kelly17 gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.18 Even if we assume that trial counsel’s state

2013A jury charge on accident is required “only if there is evidence to support a finding that the defendant committed the acts which were the basis of the charge, but without any criminal scheme or undertaking, intention, or criminal negligence.”20 Thus, the evidence must show that Haithcock admits to having committed the acts 17 290 Ga. 29, 33 (2) (a) ( 718 SE2d 232 ) (2011). 18 Terry v. State, 291 Ga. 508, 509 (2) ( 731 SE2d 669 ) (2012). 19 Kelly, supra at 34 (b), n. 5. 20 (Citation and punctuation omitted.) Griffin v. State, 262 Ga. App. 87, 88 (3) ( 585 SE2d 145 ) (2003). 9 that would consti

2013A jury charge on accident is required “only if there is evidence to support a finding that the defendant committed the acts which were the basis of the charge, but without any criminal scheme or undertaking, intention, or criminal negligence.”20 Thus, the evidence must show that Haithcock admits to having committed the acts 17 290 Ga. 29, 33 (2) (a) ( 718 SE2d 232 ) (2011). 18 Terry v. State, 291 Ga. 508, 509 (2) ( 731 SE2d 669 ) (2012). 19 Kelly, supra at 34 (b), n. 5. 20 (Citation and punctuation omitted.) Griffin v. State, 262 Ga. App. 87, 88 (3) ( 585 SE2d 145 ) (2003). 9 that would consti

2013Accord Armour v. State, 315 Ga. App. 745, 748 (2) ( 728 SE2d 270 ) (2012). 14 Bolden, supra; Armour, supra. 15 Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011). 16 Id. at 175 (4). 8 The “plain error” test adopted by our Supreme Court in State v. Kelly17 gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.18 Even if we assume that trial counsel’s state

2013Accord Armour v. State, 315 Ga. App. 745, 748 (2) ( 728 SE2d 270 ) (2012). 14 Bolden, supra; Armour, supra. 15 Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011). 16 Id. at 175 (4). 8 The “plain error” test adopted by our Supreme Court in State v. Kelly17 gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.18 Even if we assume that trial counsel’s state

2013Accord Armour v. State, 315 Ga. App. 745, 748 (2) ( 728 SE2d 270 ) (2012). 14 Bolden, supra; Armour, supra. 15 Guajardo v. State, 290 Ga. 172, 175 (3) ( 718 SE2d 292 ) (2011). 16 Id. at 175 (4). 8 The “plain error” test adopted by our Supreme Court in State v. Kelly17 gives the appellate court discretion to reverse a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.18 Even if we assume that trial counsel’s state

2012Although this argument appears to be well taken, we are constrained to dismiss Rogers’s appeal pursuant to the Supreme Court of Georgia’s decision in Williams v. State, 287 Ga. 192, 194 ( 695 SE2d 244 ) (2010), which held that a claim that a defendant’s convictions merged under OCGA § 16-1-7 (a) is a claim challenging a conviction and not a claim that the resulting sentence is void.

2012Although this argument appears to be well taken, we are constrained to dismiss Rogers’s appeal pursuant to the Supreme Court of Georgia’s decision in Williams v. State, 287 Ga. 192, 194 ( 695 SE2d 244 ) (2010), which held that a claim that a defendant’s convictions merged under OCGA § 16-1-7 (a) is a claim challenging a conviction and not a claim that the resulting sentence is void.

2011Ranger v. State, 249 Ga. 315, 319 , 290 S.E.2d 63 (1982).

2011Ranger v. State, 249 Ga. 315, 319 , 290 S.E.2d 63 (1982).

2008(Emphasis supplied.) “[A] criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” (Punctuation and footnote omitted.) Bradford v. State, 287 Ga. App. 50, 52-53 (1) ( 651 SE2d 356 ) (2007).

2008(Emphasis supplied.) “[A] criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” (Punctuation and footnote omitted.) Bradford v. State, 287 Ga. App. 50, 52-53 (1) ( 651 SE2d 356 ) (2007).