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Garcia v. State

The Court vacated the defendant's 10-year sentence, because the language of the charges to which she pled guilty, tracked that of O.C.G.A. § 16-9-4 b 5, which provides a punishment range of one to five years imprisonment.

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Christina Deann Garcia entered a guilty plea to six counts of violating OCGA § 16-9-4. She appeals, arguing that she was improperly sentenced. The State agrees that Garcia must be re-sentenced, but disagrees with her contentions concerning the manner in which the sentence should be calculated. The record shows that Garcia was originally sentenced to twenty years, eight years to be served in prison and the remainder on probation. Garcia challenged her original sentence in the trial court, and on December 15, 2008,1 she was re-sentenced to ten years on Count 1, ten years probation on Count 2, to run consecutive to Count 1, and ten years on Counts 3 through 6. The sentence further specified that “upon service of eight years of said sentence in confinement, the balance of twelve years to be served on probation.”

Garcia now contends that this sentence too was improper because she should have been sentenced for a misdemeanor pursuant to OCGA § 16-9-4 c 1 for her “first offense” conviction on Count 1. Further, Garcia argues that under the rule of lenity, she should have been sentenced to no more than three years on each of the remaining offenses pursuant to OCGA § 16-9-4 c 2.

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