Hudson v. State

Georgia still follows the count-by-count approach for determining whether a resentencing resulted in a more severe sentence, giving rise to a presumption of vindictiveness under North Carolina v. Pearce, 395 U. S. 711 1969.

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This is the second appearance of the case before this Court. In the first appeal,Hudson v. State, 309 Ga. App. 580 711 SE2d 95 2011 “Hudson I”, we vacated Claude Wayne Hudson’s sentences for the offenses of aggravated sexual battery OCGA § 16-6-22.2 b and child molestation OCGA § 16-6-4 a 1, because the trial court failed to merge the convictions, and we remanded the case for resentencing. Hudson now appeals the new sentence entered upon remand. Hudson contends that the trial court violated his due process rights by increasing his custodial sentence for child molestation because the new sentence was more severe than the original sentence. For the reasons set forth below, we reverse and remand this case again for the trial court to reconsider Hudson’s sentence.

The facts are fully set forth in Hudson I, supra, 309 Ga. App. at 580. Following a jury trial, Hudson was convicted of aggravated sexual battery and child molestation based on evidence that he had molested his niece. See id. The trial court sentenced Hudson to life on the aggravated sexual battery charge, with 25 years to serve and the remainder probated. The trial court sentenced Hudson to 30 years on the child molestation charge, with 10 years to serve and the remainder probated. Id. The two sentences were to run concurrently. On appeal from those sentences, this Court held that Hudson’s conviction for aggravated sexual battery should have merged with the conviction for child molestation. Id. at 582 2. We therefore vacated the sentences and remanded for resentencing. Id. Following remand, the trial court resentenced Hudson to 30 years on the child molestation charge, increasing the custodial term to 25 years, rather than 10 years, and probating the remainder.

Hudson v. State

Georgia still follows the count-by-count approach for determining whether a resentencing resulted in a more severe sentence, giving rise to a presumption of vindictiveness under North Carolina v. Pearce, 395 U. S. 711 1969.

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