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Prisoner Education Guide

Georgia Supreme Court Vacates Convictions and Sentences Due to Merger Errors

by Matt Clarke

On December 11, 2017, the Supreme Court of Georgia vacated convictions and sentences for aggravated assault and firearms possession due to a merger error.

Thyrell Depree Donaldson, a Georgia state prisoner, appealed his convictions for felony murder, aggravated assault, and two counts of firearms possession, all in connection with the shooting death of Robert White Jr. The Supreme Court overruled the grounds Donaldson raised, but found two merger errors in his sentencing that he had not raised on appeal.

Donaldson was convicted of firing two shots at White, who was sitting atop the stairs outside Donaldson’s apartment. One bullet missed, but the other one struck White in the back, severing his spinal cord and perforating his aorta. As a result, he could not move his legs and died shortly thereafter due to blood loss.

Donaldson was indicted on six counts: malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault for shooting White in the back (Count 3), aggravated assault for shooting at White and missing (Count 4), possession of a firearm during the commission of a felony (murder) (Count 5), and possession of a firearm during the commission of a felony (aggravated assault) (Count 6).

After he was acquitted of malice murder but found guilty on all other counts, the trial court merged Count 3 with Count 2 and then sentenced him to life for felony murder, a consecutive 20-year term for the Count 4 aggravated assault, a consecutive five-year term for possession of a firearm during the felony murder, and a concurrent five-year term for possession of a firearm during the Count 4 aggravated assault.

The evidence showed that the two shots were fired “back-to-back,” as a part of a single incident. Thus, the shootings did not constitute separate aggravated assaults and the counts should have been merged pursuant to Gomez v. State, 801 S.E.2d 847 (Ga. 2017). Therefore, both aggravated assault counts should have been merged into the felony murder count for sentencing purposes, the Court instructed.

Similarly, because the crimes involved a single victim and a single criminal episode, Donaldson could only be convicted for possession of a firearm during the commission of a crime one time pursuant to Stovall v. State, 696 S.E.2d 633 (Ga. 2008). The Count 6 possession of a firearm during the commission of aggravated assault should have been merged into the Count 5 possession of a firearm during the commission of felony murder. Therefore, the Court vacated the convictions and sentences for Counts 4 and 6 but affirmed the remaining convictions and sentences. See: Donaldson v. State, 808 S.E.2d 720 (Ga. 2017).  

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Donaldson v. State




 

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