This is the second appearance of this case before us. In Schlanger v. State , 290 Ga. App. 407 659 SE2d 823 2008, we affirmed Herbert P. Schlanger’s conviction for two counts of driving under the influence DUI and one count each of reckless driving and failure to maintain lane. We noted at that time that the trial court had imposed a single sentence of 24 months with ten days to serve without merging the DUI counts and without specifying a sentence on each count. Id. at 415 8. We therefore vacated Schlanger’s sentence and remanded the case with the direction that the trial court merge the two DUI counts and “impose separate sentences on each of the three remaining convictions.” Id. After a rehearing, the trial court imposed the same 24-month sentence but increased the time served from ten to thirty days. Appearing pro se, Schlanger argues that the trial court should have granted his motion to recuse and that the new sentence must be vacated. We agree with the latter contention and remand for resentencing. The record shows that less than two weeks after the issuance of our first opinion in this matter, before the issuance of a remittitur, and without a hearing, the trial court merged the two DUI counts, reimposed its original sentence, and ordered Schlanger to report to jail within 48 hours. Schlanger brought an emergency motion in this Court to vacate this second sentence, which we granted on the ground that the trial court lacked jurisdiction over the matter before the remittitur had been returned. Schlanger then brought a motion to recuse on the ground that the trial court’s resentencing before the return of the remittitur showed prejudice. A different judge assigned to the matter denied the motion.
On remand, and after a hearing, the trial court reimposed its sentence of 24 months, increased the time to be served from ten to thirty days, and imposed separate fines for each offense. After imposing sentence, the trial court noted Schlanger’s right to appeal, but denied a stay pending appeal. The trial court then commented as follows: “If he continues to appeal, it continues to represent to me his denial of the jury verdict and I will continue to escalate my sentence in view of that, probably, the time he needs to serve, because he’s in denial of his violation of the law.” After a short recess, the trial court stayed the new sentence pending appeal, but noted that it was not bound by the new sentence’s terms.
