Shockley v. State , 232 Ga. 154 ( 1974 )

232 Ga. 154 (1974) 205 S.E.2d 246

SHOCKLEY
v.
THE STATE.

28723.

Supreme Court of Georgia.

Submitted March 12, 1974. Decided April 4, 1974. Rehearing Denied April 23, 1974.

Hester & Hester, Frank B. Hester, for appellant.

Lewis R. Slaton, District Attorney, Carter Goode, Morris H. Rosenberg, Arthur K. Bolton, Attorney General, William F. Bartee, Jr., Assistant Attorney General, Thomas P. Burke, Deputy Assistant Attorney General, for appellee.

JORDAN, Justice.

The appellant was convicted on three counts of armed robbery in Fulton Superior Court on November 8, 1972. (For a prior appearance of this case in this court, see Shockley v. State, 230 Ga. 869 (199 SE2d 791)). The jury verdict imposed a sentence of 20 years on one count and 5 years on each of the other two counts but did not specify whether the sentences were to run consecutively or concurrently. The trial court imposed these sentences upon the appellant with the provision that they would run consecutively.

On September 20, 1973, this court decided in Wade v. State, 231 Ga. 131, 134 (200 SE2d 271) that "a trial judge does not have legal authority to say whether sentences imposed by a jury in a multi-count indictment shall run concurrently or consecutively. Under our present statutes that function is solely within the province of the jury." This ruling was followed in Mathis v. State, 231 Ga. 401 (202 SE2d 73). We have today reiterated and adhered to this ruling in Gandy v. State, 232 Ga. 105.

We therefore remand this case to the trial court with direction that the sentences be amended to show that they are to run concurrently rather than consecutively.

Judgment affirmed with direction. All the Justices concur, except Nichols, P. J., Undercofler and Hall, JJ., who dissent.