MIDDLETON v. STATE (2021)

A jury found Derrick Leonard Middleton guilty of hijacking a motor vehicle, theft by receiving stolen property, possession of a firearm during the commission of a felony, and various other offenses related to an armed robbery and carjacking. In Division 1 (a) of our prior unpublished opinion in this case, we determined that Middleton had waived his right to challenge whether the jury had returned an inconsistent verdict when it convicted him of both hijacking a motor vehicle (Count 3) and theft by receiving stolen property (Count 8). The Supreme Court of Georgia, in Middleton v. State, 309 Ga. 337, 846 S.E.2d 73 (2020), reversed that determination, concluded that the jury did return an inconsistent verdict as to these two counts, and remanded the case to this Court with direction to remand the case to the trial court to vacate the judgment of conviction in part and set aside the verdicts on these two counts. We therefore vacate Division 1 (a) of our previous opinion, adopt the opinion of the Supreme Court as our own, and reverse Middleton's convictions on Count 3 and Count 8 and remand for a new trial as to these counts. See id. at 348 (3), 846 S.E.2d 73.

In Division 2 of our prior opinion, we declined to vacate Middleton's conviction for possession of a firearm during the commission of the hijacking of a motor vehicle (Count 4) because we found that he had waived any challenge to the predicate conviction for hijacking a motor vehicle. Because we now reverse the predicate conviction for hijacking a motor vehicle, we also reverse his conviction on Count Four and remand for a new trial on this count as well. See King v. Waters, 278 Ga. 122, 123-124 (2), 598 S.E.2d 476 (2004).

In Division 3 (b) of our prior opinion, we concluded that two of Middleton's convictions for possessing a firearm during the commission of a felony (Counts 2 and 7) should have merged into Count Four. Because we now reverse Middleton's conviction on Count 4, we amend our prior holding, vacate Middleton's conviction on Count 7, and direct the trial court to merge Count 7 into Count 2 for the reasons stated in Division 3 (b) of our prior opinion.¹

No other part of our prior opinion is affected by the Supreme Court's decision, and so we hereby reinstate all of the remaining divisions of our prior opinion.

In summary, we reverse Middleton's convictions on Counts 3, 4, and 8, vacate his conviction on Count 7, and remand for proceedings consistent with the Supreme Court's decision and our decisions in this case. All of Middleton's remaining convictions and sentences stand affirmed.

Judgment affirmed in part, reversed in part, vacated in part, and case remanded.

FOOTNOTES

1.   If Middleton is eventually properly convicted on Count 4, then the trial court shall merge both Counts 2 and 7 into Count Four for the reasons stated in Division 3 (b) of our prior opinion.

Miller, Presiding Judge.

Brown and Pipkin, JJ., concur.