CopyCited 69 times | Published | Supreme Court of Georgia | Feb 9, 2009 | 285 Ga. 213, 2009 Fulton County D. Rep. 1361
...f the robbery conviction which reflected that the initial charge had been armed robbery. At the time of the opening statement, appellant was facing a charge of being a convicted felon in possession of a firearm during the commission of a crime. OCGA §
16-11-133(b)....
...2008. Oral argument was heard on September 22, 2008. [2] The trial court withdrew this charge from the jury's consideration after determining that the felony for which appellant was convicted previously was not one of the felonies enumerated in OCGA §
16-11-133(b).
CopyCited 41 times | Published | Supreme Court of Georgia | Jun 19, 2017 | 801 S.E.2d 833
...r attempted armed robbery, five consecutive years for possession of a firearm during the commission of a felony, and an additional fifteen consecutive years for commission of a crime by a convicted felon through the use of a firearm pursuant to OCGA §
16-11-133 — for a total sentence of life plus thirty years....
CopyCited 41 times | Published | Supreme Court of Georgia | Sep 9, 2013 | 748 S.E.2d 400, 2013 Fulton County D. Rep. 2843
...State, *
552277 Ga. 775, 776 (1) (596 SE2d 6) (2004). If Wyche were not an accomplice, no corroboration of his testimony would be required. Givens,
273 Ga. at 820 (1).
The trial court may have thought that Threatt had been convicted of violating OCGA §
16-11-133 (b), which authorizes a sentence up to fifteen years for unlawful possession of a firearm by certain convicted felons during the commission of a crime....
...But that crime only concerns persons who have been convicted of certain enumerated felonies, and the felony of which Threatt had previously been convicted — burglary — is not among them. Moreover, the indictment makes clear that Threatt was charged in this case with violating OCGA §
16-11-106, not OCGA §
16-11-133 (b).
CopyCited 25 times | Published | Supreme Court of Georgia | Jun 21, 2021 | 312 Ga. 31
...ion of a firearm by a
convicted felon.3 See Frazier,
308 Ga. at 452-453 (2) (a). However, as
3 Moon was convicted of four counts of possession of a firearm by a
convicted felon. Two of these, Counts 14 and 15, were charged pursuant to
OCGA §
16-11-133 for Moon’s possession of a firearm by a convicted felon
during the murders of Pickels and Biancosino....
CopyCited 19 times | Published | Supreme Court of Georgia | Aug 24, 2020 | 309 Ga. 630
FINAL COPY
309 Ga. 630
S20A0895. BROOKS v. THE STATE.
BOGGS, Justice.
Deontae Tremayne Brooks was convicted of malice murder,
aggravated assault, and possession of a firearm by a convicted felon
under OCGA §
16-11-133 (b) in connection with the shooting death
of Branden “Big B” Tinch and the aggravated assault of Lenard Gay.
He was sentenced to life without the possibility of parole. He
appeals, asserting three enumerations of error: insufficiency of the
evidence to support his conviction under OCGA §
16-11-133 (b),
ineffective assistance of counsel, and trial court error in failing to
grant his motion for mistrial. For the reasons stated below, we
reverse Brooks’ conviction under OCGA §
16-11-133 (b), affirm his
convictions for malice murder and the aggravated assault of Gay,
and remand the case to the trial court with direction to enter a
judgment of conviction and sentence on the guilty verdicts for
possession of a firearm during the commission of a felony and
possession of a firearm by a convicted felon under OCGA § 16-11-
131, which the trial court originally merged into the conviction
under OCGA §
16-11-133 (b).1
1....
...of a firearm during the commission of a felony, possession of a firearm by a
convicted felon under OCGA §
16-11-131, and possession of a firearm during
commission of a crime against a person by a felon previously convicted of a
crime involving a firearm under OCGA §
16-11-133 (b)....
...On May 15, 2018, Brooks was
sentenced to serve life in prison without the possibility of parole, plus ten years
in prison to be served concurrently on the conviction for aggravated assault
involving Gay, and five years in prison to be served concurrently on the
conviction under OCGA §
16-11-133 (b), although that Code section mandates
a fifteen-year consecutive sentence. The trial court merged the other
aggravated assault count into the malice murder conviction and merged the
remaining firearms counts into the conviction under OCGA §
16-11-133 (b); the
felony murder charges were vacated by operation of law....
...Gay identified Brooks from
a photo lineup, and Brooks was arrested in Ohio approximately one
month later.
(a) Brooks argues that the evidence was insufficient to support
his conviction on Count 9, possession of a firearm by a convicted
felon during the commission of another felony enumerated under
OCGA §
16-11-133 (b). Both the District Attorney and the Attorney
General concede that the evidence adduced at trial was insufficient,
and we agree.
As part of the proof of a violation of OCGA §
16-11-133 (b), the
State must present evidence that the defendant possessed a firearm
in the commission of certain crimes after having been convicted of
one of nine enumerated felonies or “any felony involving the use or
possession of a firearm.” OCGA §
16-11-133 (b).3 Count 9 of the
3 OCGA §
16-11-133 (b) provides:
Any person who has previously been convicted of or who has
indictment charged Brooks with possessing a handgun during the
commission of a felony against the person of another, see OCGA §
16-11-133 (b) (1), “said accused having been previously convicted of
a felony involving the possession or use of a firearm on indictment
number 06SC51346 in the Superior Court of Fulton County, on
October 1, 2007.”
At Brooks’ trial...
...justification by discharging a firearm from within a
motor vehicle toward a person or persons.
no witnesses from the 2007 case. The evidence presented at trial
therefore was insufficient to authorize the jury to convict Brooks
under OCGA §
16-11-133 (b)....
CopyCited 18 times | Published | Supreme Court of Georgia | Sep 8, 2020 | 309 Ga. 698
...earm
during the commission of a felony under OCGA §
16-11-106 (Count 11);
possession of a firearm by a convicted felon under OCGA §
16-11-131 (Count
12); and possession of a firearm by a convicted felon during the commission of
a felony under OCGA §
16-11-133 (Count 13).
Marshall was tried from August 10 to 12, 2015, and the jury found him
guilty of criminal trespass as a lesser included offense of second-degree
criminal damage to property and guilty on all the other counts....
...Although the trial court further sentenced Marshall to life
7 Marshall’s argument regarding recidivist sentencing does not affect his
remaining convictions. His 15-year consecutive sentence for possession of a
firearm was mandated under OCGA §
16-11-133 (b), without regard to his prior
criminal history, and his conviction for the lesser included offense of criminal
trespass, which is punishable as a misdemeanor under OCGA §
16-7-21 (d),
was not subject to recidivist sentencing.
8 See Blackwell, 302 Ga....
CopyCited 17 times | Published | Supreme Court of Georgia | Aug 9, 2022 | 314 Ga. 335
...e, possession of a
firearm during the commission of a felony under OCGA §
16-11-106, possession
of a firearm by a convicted felon under OCGA §
16-11-131, and possession of a
firearm by a convicted felon during the commission of a felony under OCGA
§
16-11-133....
...d] the act.”
OCGA §
16-5-70 (d) (2). Finally, Ellington’s conviction for possession
of a firearm by a convicted felon during the commission of a felony
required the State to prove, among other elements, that he
possessed a firearm. See OCGA §
16-11-133 (b).5
To the extent Ellington challenges the sufficiency of the
evidence related to counts that were merged for sentencing purposes
or vacated by operation of law—felony murder, aggravated assault
5 Ellington’s chall...
...ton—i.e., that
he committed the relevant acts; that he did so with malice
aforethought—i.e., the requisite intent; and that he did so with
knowledge that Meshiah was present and heard the act. See OCGA
§§
16-5-1 (a), (b); 16-15-70 (d) (2);
16-11-133 (b); Young v....
CopyCited 17 times | Published | Supreme Court of Georgia | Jan 8, 2007 | 281 Ga. 459, 7 Fulton County D. Rep. 104, 7 FCDR 104
...guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,
443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). Judgments affirmed. All the Justices concur. NOTES [1] Lawton was charged under and convicted of OCGA §
16-11-133(b) which provides: Any person who has previously been convicted of or who has previously entered a guilty plea to the offense of murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, aggravated sexual...
...On August 20, 2002, a Richmond County grand jury indicted Lawton, along with Charles Hernell Hankerson, Lorenzo Dexter Lindsey, and William Rodriquez Abrams, for the malice murder of Marcus Taylor. Lawton was additionally indicted for possession of a firearm by a convicted felon during the commission of a crime under OCGA §
16-11-133(b); Lindsey was also charged with criminal solicitation to commit murder....
CopyCited 14 times | Published | Supreme Court of Georgia | Jun 30, 2022 | 314 Ga. 153
...degree of Knight’s dwelling (Count 10), possession of a firearm during the
commission of a felony (Count 11), possession of a firearm by a convicted felon
under OCGA §
16-11-131 (Count 12), and possession of a firearm by a convicted
felon under OCGA §
16-11-133 (Count 13).
At a jury trial held from June 8 to 12, 2015, the trial court granted
1....
...which he argues would have prevented the introduction of evidence
of a previous felony conviction at trial. Here, Talley was charged
with two counts of possession of a firearm by a convicted felon; one
under OCGA §
16-11-131 (Count 12) and a second under OCGA §
16-11-133 (Count 13)....
CopyCited 11 times | Published | Supreme Court of Georgia | Oct 4, 2022 | 314 Ga. 798
...iction
thereof, shall be punished by confinement for a period of five years,
such sentence to run consecutively to any other sentence which the
person has received.
14
of a felony under OCGA §
16-11-133.7 See Atkinson,
301 Ga. at 521
(2); Jones,
318 Ga. App. at 110 (6). Here, however, Beamon was not
charged under OCGA §
16-11-133 with possession of a firearm
during the commission of a felony based on his status as a felon.
Rather, Beamon was indicted on Count 16 for possession of a firearm
during the commission of a felony under OCGA §
16-11-106, and on
Count 21 for possession of a firearm by a convicted felon under
OCGA §
16-11-131 (b). And we have clearly held that possession of
7 OCGA §
16-11-133 (b) provides:
Any person who has previously been convicted of or who has
previously entered a guilty plea to the offense of murder, murder
in the second degree, armed robbery, home invasion in any degree,
kidna...
CopyCited 11 times | Published | Supreme Court of Georgia | Jun 21, 2021 | 311 Ga. 843
...incident in which they were killed. On appeal, Montanez argues that
the evidence presented at trial was insufficient as a matter of due
process to sustain his conviction as to one count of possession of a
firearm by a convicted felon under OCGA §
16-11-133 (b); that the
evidence was insufficient to sustain any of his convictions because
the testimony of his alleged accomplice was not corroborated, as
required by Georgia law; and that his trial counsel provided
constitutionally ineffective assistance....
...a
stolen firearm, a felony.
(a) Montanez argues that the evidence presented at trial was
insufficient as a matter of constitutional due process to support his
conviction for possession of a firearm by a convicted felon in violation
of OCGA §
16-11-133 (b)....
...le to the
verdicts and asks whether any rational trier of fact could have found
the defendant guilty beyond a reasonable doubt. See Jackson v.
Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979). To prove a violation of OCGA §
16-11-133 (b), the State must
present evidence that the defendant possessed a firearm in the
commission of certain felonies after previously having been
convicted of one of nine enumerated felonies or “any felony involving
10
the use or possession of a firearm.” OCGA §
16-11-133 (b).8 Count 21
of the indictment alleged that Montanez was in possession of a
firearm, “having been previously convicted of a felony involving the
possession or use of a firearm[.]”
At trial, the State introduced its Exhibit 69, which was a copy
of a sentencing order showing that Montanez had previously pled
guilty to theft by receiving stolen property (a firearm), a felony, in
8 OCGA §
16-11-133 (b) provides:
Any person who has previously been convicted of or who has
previously entered a guilty plea to the offense of murder, murder
in the second degree, armed robbery, home invasion in any degree,
kidn...
...The State also presented evidence that
Montanez then possessed a firearm during the commission of
several crimes, including the murders of Caceres and Mederos-Vega.
Accordingly, the evidence presented at trial was sufficient to sustain
Montanez’s conviction for violating OCGA §
16-11-133 (b).10
(b) Montanez also argues that the evidence presented against
9 Although this exhibit in the original trial record transmitted to this
Court was incomplete, the exhibit was supplemented and reflects Montanez’s
prior...
CopyCited 10 times | Published | Supreme Court of Georgia | Jun 1, 2020 | 308 Ga. 894
...med robbery, and
felony murder based on aggravated assault. Appellant also was charged with
possession of a firearm during the commission of a felony by a person
previously convicted of a felony involving the use or possession of a firearm,
see OCGA §
16-11-133 (b) (1), and Pontoon was charged with possession of a
firearm during the commission of a felony, see OCGA §
16-11-106 (b) (1)....
CopyCited 6 times | Published | Supreme Court of Georgia | Oct 11, 2023
...during the commission of a felony (Counts 7 and 14), two counts of possession
of a firearm by a convicted felon under OCGA §
16-11-131 (Counts 8 and 15),
two counts of possession of a firearm by a convicted felon through use of a fire-
arm under OCGA §
16-11-133 (Counts 9 and 16), armed robbery (Count 10),
and two counts of aggravated assault (Counts 11-12)....
... On appeal, Bowman contends that the trial court erred by (1) in-
structing the jury on party to a crime, conspiracy, and provocation
by words alone, and (2) failing to allow him to stipulate to his prior
conviction to prove the required elements of Count 9, see OCGA §
16-11-133, without stipulating that the conviction involved the pos-
session or use of a firearm....
...The case was docketed to
the April 2023 term and submitted for a decision on the briefs.
2
argument about the stipulation fails because the State had to estab-
lish that his prior conviction involved the use or possession of a fire-
arm to prove that he violated OCGA §
16-11-133, so making him
choose between having that element proven by stipulation or evi-
dence did not violate the rule of Old Chief v....
...would not
serve as a justification for murder. This claim of error fails.
3. Bowman contends that the trial court erred by not allowing
him to stipulate to his prior conviction to prove Count 9, felon in
possession of a firearm under OCGA §
16-11-133, without also stip-
ulating that his prior felony involved the possession or use of a fire-
arm.
Count 9 of Bowman’s indictment charged him with committing
a felony against the person of another while possessing a handgun
and “having been previously convicted of a felony involving the pos-
session or use of a firearm,” a violation of OCGA §
16-11-133....
...me or nature
of the offense—outweighed its negligible probative value. See id. at
180-191 (II) (B). Bowman contends that the same is true here: his
stipulation could have satisfied the State’s burden to prove the prior
felony element of OCGA §
16-11-133, rendering further details about
his prior conviction unnecessary, and so the risk of unfair prejudice
from the jury hearing any such details outweighed their negligible
probative value.
As an initial matter, it is not clear from the record that Bow-
man preserved this claim of error for review....
...has not argued that this claim was not preserved), Bowman’s argu-
ment fails at its premise. His preferred stipulation—stipulating to a
prior felony, but not to the fact that it involved a firearm—would not
have satisfied the prior-felony element of OCGA §
16-11-133, which,
as relevant to the indicted offense here, requires proof that the prior
felony was “any felony involving the use or possession of a firearm.”
17
Indeed, in Brooks v. State,
309 Ga. 630 (847 SE2d 555) (2020), we
held that the evidence to support a defendant’s OCGA §
16-11-133
conviction was insufficient because the stipulation to the defend-
ant’s prior conviction failed to include that the prior conviction in-
volved the possession or use of a firearm and the title of the crime
did not suggest the possession or use of a firearm....
...prior conviction charged in Bowman’s indictment—the stipulation
entered here appears to be about as narrowly tailored as it could be.
In his reply, Bowman contends that his offer to stipulate “im-
plicitly included a stipulation to all of the required elements under
OCGA §
16-11-133.” But he offers no citation to the record for his
assertion that his preferred stipulation could have been construed
so broadly, and we see nothing in the record suggesting he offered to
18
stipulate to anything beyond the fact that he is a convicted felon,
which, under Brooks, see
309 Ga. at 631-634 (1), would not have sat-
isfied the State’s burden under OCGA §
16-11-133.
4....
CopyCited 3 times | Published | Supreme Court of Georgia | Jun 1, 1999 | 517 S.E.2d 66, 99 Fulton County D. Rep. 2108
...21, 22 (494 SE2d 668) (1998).
See OCGA §
48-2-60 (b).
For this same reason, we also reject Daniels’s claims (1) that he could not have pled guilty to being a felon in possession of a firearm, when his earlier conviction had been disposed of under the First Offender Act, and (2) that OCGA §
16-11-133, which concerns sentencing for adjudicated felons convicted of firearms offenses, should not have been applied to him.
CopyPublished | Supreme Court of Georgia | Aug 10, 2020 | 309 Ga. 511
...An Athens-Clarke
County grand jury indicted Brown in April 2014, charging him with murder
with malice aforethought, three counts of felony murder, two counts of
aggravated assault, three counts of the unlawful possession of a firearm during
the commission of a felony (under OCGA §
16-11-133 (b)), one count of
terroristic acts, and one count of the unlawful possession of a firearm by a
convicted felon....
