--- title: Davenport v. Ward, Comr collection: opinions id: S22A0179 cite_as: Davenport v. Ward, Comr, 313 Ga. 603 (2022) canonical_url: https://georgiacommons.org/opinions/S22A0179 md_url: https://georgiacommons.org/opinions/S22A0179.md text_url: https://georgiacommons.org/opinions/S22A0179/text source_url: https://www.courtlistener.com/opinion/10679919/davenport-v-ward-comr/ date: 2022-04-19 status: published corpus_version: opinions-2026-09-14 license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice. up: https://georgiacommons.org/opinions/2022.md previous: https://georgiacommons.org/opinions/S22A0165.md next: https://georgiacommons.org/opinions/S21U0879.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 1655 omitted_url: https://georgiacommons.org/opinions/S22A0179.md?full=1 docket: S22A0179 citation: 313 Ga. 603 court: Supreme Court of Georgia case_type: habeas authoring_justice: Bethel disposition: Reversed in part vote: All the Justices concur, except Ellington, J., disqualified word_count: 1133 date_filed_source: courtlistener citations: - 872 S.E.2d 281 record_source: courtlistener legal_areas: - criminal law - habeas corpus upstream_id: "10679919" summaries_model: claude-sonnet-5 --- # Davenport v. Ward, Comr Supreme Court of Georgia, docket S22A0179, filed 2022-04-19, 313 Ga. 603. ## Opinion 313 Ga. 603 FINAL COPY S22A0179. DAVENPORT v. WARD. BETHEL, Justice. We granted Gregory Davenport’s application for a certificate of probable cause to appeal the denial of his petition for a writ of habeas corpus, identifying the following question: whether the habeas court erred in finding that a count of aggravated assault predicated on the use of a deadly weapon did not merge with Davenport’s conviction for armed robbery. This appeal followed. Because we conclude that the habeas court erred with respect to that question, we reverse its judgment in part. 1. Relevant to this appeal, on July 24, 2015, a Floyd County grand jury jointly indicted Davenport and a co-defendant for armed robbery (Count 1), aggravated assault with intent to rob (Count 2), and aggravated assault with a deadly weapon (Count 3).1 1 Davenport and his co-defendant were also charged with five other counts not at issue in this appeal. Specifically, Count 1 charged Davenport with armed robbery by taking property “from the person and immediate presence of Floyd Roebuck, by the use of an offensive weapon, to wit: a handgun and firearm.” Count 3 charged Davenport with aggravated assault by making “an assault upon the person of Floyd Roebuck, with a handgun and firearm, a deadly weapon.” On February 8, 2016, Davenport entered a non-negotiated guilty plea as to all counts, and he was sentenced on April 19, 2016. At Davenport’s sentencing hearing, the State set forth the factual basis for Davenport’s crimes. In relevant part, the State represented as follows: Roebuck stated he went to Kroger to pick up some groceries, and when he pulled into his parking space, he noticed an older model Nissan Altima, tan in color. . . . Roebuck said that when he came out of Kroger, he noticed the Nissan then parked near his vehicle. He then left Kroger and went straight home. [Roebuck] said he popped the trunk release lever, and then he turned to open his door. It was at that time, as soon as he turned, he noticed a black male, [Davenport], in front of him with a gun pointed at him. [Roebuck] said he looked at the gun, and [Davenport] said, “Yeah, it’s loaded.” [Roebuck] said the only other statement that [Davenport] made was, “Give me your wallet and your cell phone.” [Roebuck] did as he was told because he was afraid, basically, that he would be killed. [Roebuck] said as soon as [Davenport] got the money and the phone, he walked away from his car in a fast but not running manner. [Roebuck] saw [Davenport] getting in his car matching the one that had basically been watching him at Kroger. At sentencing, the trial court concluded that Count 2, aggravated assault with intent to rob, merged into Count 1, armed robbery, because they were based on the same underlying transaction. However, the trial court also concluded that Count 3, aggravated assault with a deadly weapon, did not merge into Count 1 because the aggravated assault could have been committed without the intent to rob. The trial court sentenced Davenport to 20 years in prison on Count 1 and 20 years in prison on Count 3, to be served consecutively.2 On January 2, 2018, Davenport filed a pro se petition for a writ of habeas corpus against the Commissioner of the Department of 2 Davenport was also sentenced on some of the other counts, but those sentences are not at issue in this appeal. Corrections,3 alleging nine grounds of ineffective assistance of counsel. On May 21, 2018, Davenport filed an amended habeas petition alleging additional grounds for relief. Among other claims, the amended petition alleged that Count 3 should have merged with Count 1. The habeas court denied relief on each of Davenport’s claims for relief on February 22, 2021. Davenport filed a timely notice of appeal and a timely application for a certificate of probable cause to appeal. On September 21, 2021, this Court granted Davenport’s application as to the merger claim.4 2. The State concedes the merger error alleged by Davenport, and we agree that both the trial court and the habeas court erred in their determinations that Count 3 should not have merged with 3 At the time Davenport filed his petition, Gregory Dozier was Commissioner of the Department of Corrections. Timothy Ward became Commissioner on February 18, 2019, and currently holds that position. Ward was substituted as the defendant in this case by operation of law. See OCGA § 9-11-25 (d) (1) (“When a public officer is a party to an action in his official capacity and during its pendency . . . ceases to hold office, . . . his successor is automatically substituted as a party.”). 4 Davenport is represented in this appeal by the Mercer Habeas Project at the Mercer University School of Law. We thank the faculty and students for their representation of Davenport in this appeal. Count 1. We have explained that “because there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery, that form of aggravated assault will merge into armed robbery if the crimes are part of the same act or transaction.” (Citation and punctuation omitted.) Chambers v. Hall, 305 Ga. 363, 365 (3) (825 SE2d 162) (2019); see also Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010) (holding that the “deadly weapon” requirement of aggravated assault under OCGA § 16-5-21 (a) (2) is the equivalent of the “offensive weapon” requirement of armed robbery under OCGA § 16-8-41 (a)). Count 1 charged Davenport with armed robbery by taking property “from the person and immediate presence of Floyd Roebuck, by the use of an offensive weapon, to wit: a handgun and firearm.” Count 3 charged Davenport with aggravated assault by making “an assault upon the person of Floyd Roebuck, with a handgun and firearm, a deadly weapon.” As the State’s recitation of the evidence at Davenport’s sentencing hearing makes clear, both of those charges arose from the same conduct — threatening Roebuck at gunpoint and demanding his wallet and cell phone. Accordingly, Count 3 merged into Davenport’s conviction for armed robbery. “The trial court failed to recognize that merger and erroneously entered a conviction and sentence for the aggravated assault, which must be set aside.” Chambers, 305 Ga. at 365 (3). Based on the foregoing, the judgment of the habeas court is reversed in part. Davenport’s remaining convictions are unaffected by this ruling. Judgment reversed in part. All the Justices concur, except Ellington, J., disqualified. Decided April 19, 2022. Habeas corpus. Coffee Superior Court. Before Judge Turner. Brian S. Kammer, for appellant. Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee. ## Summaries written by Georgia Commons The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary. The Supreme Court of Georgia ruled that a Floyd County man's aggravated assault conviction should have merged into his armed robbery conviction because both charges came from the same armed robbery of a Kroger shopper at gunpoint. ### Plain-language summary 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. ### Holding, as summarized 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. ### Disposition Reversed in part. All the Justices concur, except Ellington, J., disqualified. ### Why it matters 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. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (1,655 characters) are at https://georgiacommons.org/opinions/S22A0179.md?full=1