STROZIER v. The STATE.

Anthony v. The State.

S19A0790 S19A0907

Supreme Court of Georgia.

Decided: June 10, 2019

Wallace Carter Clayton, II, Jones, Morrison & Womack, P.C., 101 Marietta Street, Suite 3175, Atlanta, Georgia 30303, for Appellant in Case No. S19A0790

Matthew K. Winchester, Law Offices of Matthew K. Winchester, Jason Michael McLendon, McLendon Law Firm, LLC, 1800 Peachtree Street, NW, Suite 430 Atlanta, Georgia 30309, for Appellant in Case No. S19A0907

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Vanessa Therese Sassano, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, John Richard Edwards, A.D.A., Jesse David Evans, Deputy Chief A.D.A., John Stuart Melvin, District Attorney, Cobb County District Attorney's Office, 70 Haynes Street, Marietta, Georgia 30090, for Appellees in Case Nos. S19A0790, S19A0907

Ellington, Justice.

*362A jury found Johnathan Anthony and Jekari Strozier guilty of a variety of crimes, including felony murder. On appeal, we held that "the trial court properly convicted [the] appellants of felony murder predicated upon unlawful participation in criminal gang activity through the commission of a simple battery [Count 4]." (Citation omitted.) *Anthony v. State* , 303 Ga. 399, 403 (2) (a), 811 S.E.2d 399 (2018). We also held that the jury's verdicts as to voluntary manslaughter (Count 1) and the other felony murder counts (Counts 2-3, 5-7) were vacated by operation of law. Id. at 399 n.1, 811 S.E.2d 399. We explained that,

> [o]n the facts presented in this case, the offenses of unlawful participation in criminal gang activity through the commission of an aggravated assault [Count 12] and unlawful participation in criminal gang activity through the commission of an aggravated battery [Count 13] merge with the offense of unlawful participation in criminal gang activity through the commission of a simple battery [Count 10], which formed the basis for - and properly was merged into - the felony murder of which the appellants were convicted and sentenced.

Id. at 405 (2) (b), 811 S.E.2d 399. Finally, we held that the evidence was insufficient as to Count 11 (affray) and so we reversed that conviction. Id. at 401 (1), 811 S.E.2d 399. After explaining in detail how the convictions on Counts 1-3 and 5-13 had been either merged, vacated, or reversed, we affirmed the appellants' convictions as to the Count 4 felony murder *only* . We did not remand these cases to the trial court for resentencing. When the cases returned to the trial court, all the court was required to do was to file the remittiturs.

Instead, upon the return of the remittiturs, the trial court, at the urging of the prosecutor, entered an "Amended Sentence Pursuant to Supreme Court Decision" for each defendant. The court sentenced Strozier and Anthony to life imprisonment for felony murder predicated on aggravated battery (Count 3, one of the felony murder convictions that had been vacated by operation of law) and to 15 years imprisonment for criminal gang activity (Count 13, aggravated battery, one of the predicate offenses that we held had merged into Count 10, which, in turn, had been merged into Count 4.) The trial court directed a verdict of not guilty on Count 11 and noted that the remaining counts either merged or had been vacated. The appellants contend, and the State concedes, that the trial court's resentencing orders violate the law of the case rule.

Georgia's statutory law of the case rule provides that holdings of the Supreme Court in a case shall be binding in all subsequent proceedings in that case in the lower court. OCGA § 9-11-60 (h). It is well established that this rule applies to our holdings in criminal cases. See, e.g., *McDonald v. State* , 305 Ga. 5, 6 (1), 823 S.E.2d 280 (2019) ; *Roulain v. Martin* , 266 Ga. 353, 354 (1), 466 S.E.2d 837 (1996). In *Anthony* , we affirmed the appellants' sentences as to Count 4 only. Because the trial court was precluded from revising that holding, the amended sentencing orders are nullities that did not supersede the sentencing orders already reviewed by this Court. See *Hollmon v. State* , 305 Ga. 90, 91 (1), 823 S.E.2d 771 (2019) (The trial court lacked authority to "resentence" the defendant on felony murder and criminal attempt convictions previously vacated by operation of law.). Therefore, the appellants' sentences as to Count 4 remain in effect.

*Judgments vacated.*

All the Justices concur.