MERGER OF CHARGES IN GEORGIA VEHICULAR HOMICIDE SENTENCING
Posted by Ben Sessions | | Uncategorized
At the hearing on Hill’s motion for new trial, the parties agreed that the trial court should merge DUI vehicular homicide (Counts 3 and 4) into reckless vehicularhomicide (Counts 1 and 2). This is correct, since Hill could “be convicted only once for the death of each victim.” Diamond v. State, 267 Ga. 249, 251(3)(b), 477 S.E.2d 562 (1996) (where defendant was convicted of three counts of felony murder and three counts of DUI vehicular homicide, the latter were vacated by operation of law). The State also concedes that Hill’s reckless driving, red light, and less safe DUIconvictions (Counts 5, 6, and 7) should merge into the reckless vehicular homicideconvictions. See Harris v. State, 272 Ga.App. 366, 373-374(6), 612 S.E.2d 557 (2005) (as lesser included offenses, DUI and reckless driving convictions merge into vehicular homicide conviction); Hamby v. State, 256 Ga.App. 886, 888(3), 570 S.E.2d 77 (2002) (due care conviction merges into vehicular homicide conviction).
7 (b) Count 5 of the indictment charged that Hill’s reckless driving-including running a red light, going too fast for conditions, and *507 failing to exercise due care-caused the collision with the burgundy vehicle containing the two women who later died. Count 8 charged that Hill’s failure to exercise due care, including his failure to sound his horn, caused him to strike the female pedestrian. The acts leading to these two charges involved different facts and different victims. Each of the crimes was therefore “established by proof of an additional fact not at issue in the other crime[ ].” Drinkard v. Walker, 281 Ga. 211, 217, 636 S.E.2d 530 (2006). It follows that they do not merge for sentencing purposes. See Harris, supra, 272 Ga.App. at 373(6), 612 S.E.2d 557 (serious injury by motor vehicle convictions do not merge into vehicular homicide conviction where five different and surviving victims were involved in the former); Hamby, supra, 256 Ga.App. at 888(3), 570 S.E.2d 77 (affirming trial court’s refusal to merge conviction for speeding into vehicularhomicide conviction).
After these operations of law, then, Hill stands convicted of two felony counts of reckless vehicular homicide (Counts 1 and 2) and one misdemeanor count of failing to exercise due care (Count 8). The trial court sentenced Hill to fifteen years to serve, running concurrently, on the two reckless vehicular homicide counts. However, the trial court also sentenced Hill to 12 months to serve concurrently on Counts 5 through 8, all of which involved misdemeanors. Because the misdemeanor sentence was based in part on convictions that merged with the reckless vehicularhomicide counts, and because the trial court never vacated Hill’s convictions for Counts 3 through 7, we vacate the relevant portions of Hill’s sentence and remand the case to the trial court for sentencing in accordance with this opinion. See Kemper v. State, 251 Ga.App. 665, 666-667(2), 555 S.E.2d 40 (2001) (vacating sentence and remanding for resentencing when convictions merged).