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McNair v. State

Shabazz v. State, 273 Ga. App. 389 2005 and its progeny, disapproved of, to the extent that they held that the rule of lenity cannot be applied, because the statues at issue exact felony punishments

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Upon being tried before a jury, appellant Todd Christopher McNair was charged and convicted of identity fraud OCGA § 16-9-1211 for the theft and use of the victim’s credit card. Prior to being sentenced, appellant argued that the rule of lenity should be applied such that he would be sentenced for committing financial transaction card theft OCGA §16-9-31,2 a crime for which he was not charged or convicted, but which has a lesser penalty than identity fraud.3 The trial court rejected this argument and sentenced appellant as a recidivist to 10 years five years to serve for identity fraud. The Court of Appeals affirmed the trial court’s decision in an unpublished opinion by relying on Rollf v. State, 314 Ga. App. 596 2 a 724 SE2d 881 2012, among other similar cases, to conclude the rule of lenity did not apply because both crimes were felonies and, consequently, the Court of Appeals did not reach the merits. We granted appellant’s petition for a writ of certiorari and posed the following question to the parties: “Whether the Court of Appeals erred in holding that the rule of lenity does not apply when the statutory violations at issue are both classified as felonies, even though the offenses carry different punishments.” Because we answer the question in the affirmative, the Court of Appeals’ decision is reversed and the case is remanded for the Court of Appeals to reach the merits.

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