Davenport v. Ward, Comr

Gregory Davenport pleaded guilty in Floyd County to armed robbery and two counts of aggravated assault after he pointed a gun at a man named Floyd Roebuck outside a Kroger and took his wallet and phone. The trial court decided one aggravated assault count merged into the armed robbery conviction, but ruled a second aggravated assault count, based on using a deadly weapon, did not merge, and sentenced Davenport to a separate 20-year term for it. Davenport later filed a petition for a writ of habeas corpus, a challenge to the legality of his imprisonment, arguing the second aggravated assault charge should also have merged into the armed robbery conviction. A superior court denied his petition. The Supreme Court of Georgia agreed with Davenport that the two convictions were based on the exact same act, threatening Roebuck with a gun and demanding his belongings, and ruled that the aggravated assault conviction must be set aside because it merged into the armed robbery conviction.

Aggravated assault with a deadly weapon has no element that armed robbery does not already contain, so it merges into an armed robbery conviction when both arise from the same act or transaction; because Davenport's assault and robbery charges both stemmed from the single act of holding Roebuck at gunpoint and demanding his belongings, the aggravated assault conviction must be set aside.

The ruling removes a separate 20-year sentence Davenport was serving, since one of his two consecutive sentences must now be set aside. It also reinforces for prosecutors and trial judges statewide that an aggravated assault charge based on a deadly weapon generally merges into an armed robbery charge arising from the same incident.

Reversed in part

1. The court applied the legal rule that a crime merges into another conviction when it has no element that the other crime lacks and both arose from the same act or transaction, meaning a person cannot be separately punished for both.
2. It noted that aggravated assault with a deadly weapon under Georgia's aggravated assault law (OCGA § 16-5-21) requires the same kind of weapon use as the 'offensive weapon' element of armed robbery under Georgia's armed robbery law (OCGA § 16-8-41), so one crime adds nothing the other lacks.
3. Reviewing the facts recited by the State at Davenport's sentencing, the court found that the armed robbery charge and the aggravated assault charge both described the identical conduct: pointing a gun at Roebuck and demanding his wallet and phone.
4. Because the two charges arose from the same single transaction, the court concluded the aggravated assault count merged into the armed robbery conviction, so the trial court and habeas court were wrong to treat them as separate, independently punishable crimes.
5. The court held that the aggravated assault conviction and its consecutive 20-year sentence must be set aside, while leaving Davenport's other convictions from the same case untouched.

• armed robbery
• aggravated assault
• merger of offenses
• habeas corpus petition
• Floyd County