Appellant Delman Higuera-Hernandez and his co-defendant Rogelio Higuera-Gutierrez were jointly tried for two murders and other offenses. A jury found Appellant guilty of the malice murder of Antonio Clark, the felony murder of Santos Palacios-Vasquez during the commission of a conspiracy to commit trafficking in cocaine, the underlying conspiracy offense itself, trafficking in a quantity of cocaine separate and distinct from that involved in the conspiracy count, and two counts of possession of a firearm during the commission of a felony. The trial court entered judgments of conviction on these guilty verdicts and imposed concurrent sentences of life imprisonment for the two murders and consecutive terms of five years for conspiracy, ten years for trafficking, and five years for each weapons offense. Appellant directly appeals from those convictions.1 1. Construed most strongly in support of the verdicts, the evidence shows that Appellant and his co-defendant met others at an apartment for the purpose of selling two kilograms of cocaine. After receiving a large amount of cash, Appellant shot and killed Clark. Palacios-Vasquez was fatally shot, and Appellant himself was shot in the abdomen. He fled with the help of others and sought treatment at a hospital, claiming that he was injured in an attempted robbery. Although Appellant denied knowledge of the apartment, his blood was found at the crime scene, and a set of keys to the apartment was discovered at his house. Investigators also found over 28 grams of cocaine with a purity of at least 10 at the apartment in a different container from the purported two kilograms of cocaine offered for sale. The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia , 443 U.307 99 SC 2781, 61 LE2d 560 1979; Hendricks v. State , 277 Ga. 61-62 1 586 SE2d 317 2003.
However, where, as here, the defendant is found guilty of both felony murder and the underlying felony, that “underlying felony merges into the felony murder conviction. Cit. Here, the conspiracy conviction was the underlying felony that formed the basis for the felony murder conviction . . . .” Carter v. State , 285 Ga. 394, 399 8 677 SE2d 71 2009. Because the underlying conspiracy merged into the felony murder conviction, the trial court erred in entering a separate judgment of conviction and sentence on the jury’s verdict finding Appellant guilty of conspiracy. Cits. Therefore, that separate judgment and sentence, even though not enumerated as error, must be vacated. Cits. White v. State , 278 Ga. 499, 501 2 604 SE2d 159 2004.
