Marlowe v. State

618 S.E.2d 180 (2005)

274 Ga. App. 535

MARLOWE v. The STATE.

No. A02A1633.

Court of Appeals of Georgia.

July 21, 2005.

John T. Strauss, Covington, for appellant.

W. Kendall Wynne, Jr., Dist. Atty., Jeffrey L. Foster, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

By opinion dated November 17, 2003, Case No. S03G0351, the Supreme Court of Georgia reversed Division 2 of this Court's opinion in the above-captioned case, Marlowe v. State, 258 Ga.App. 152, 572 S.E.2d 685 (2002), in which we held that Marlowe's three counts of possession of a firearm during the commission of a felony should be merged for purposes of sentencing. The Supreme Court held that:

in Marlowe, the Court of Appeals properly merged the two possession offenses stemming from attempted robbery and aggravated assault against a single victim. However, the possession charge predicated on the burglary count, a crime involving illegal entry into a building, would stand.

State v. Marlowe, 277 Ga. 383, 386-387(3), 589 S.E.2d 69 (2003).

Accordingly, we vacate Division 2 of our opinion, and the judgment of the Supreme Court is made the judgment of this court for Division 2. This case is remanded for resentencing as above-directed by the Supreme Court of Georgia. The remainder of our opinion was not addressed by the Supreme Court and therefore still stands.

Judgment affirmed in part and reversed in part. Case remanded for re-sentencing.

RUFFIN, C.J., and BARNES, J., concur.