Turner v. State

A jury found Tremayne Turner guilty of armed robbery, aggravated assault, criminal damage to property, and possession of a firearm during the commission of a crime. The trial court entered a judgment of conviction on the verdict, and sentenced Turner to serve 12 years for armed robbery, 20 years for aggravated assault, 5 years for criminal damage to property, and 5 years for possession of a firearm during the commission of a crime. The aggravated assault and criminal damage to property convictions were to run concurrently with the armed robbery conviction, and the possession of a firearm conviction was to run consecutively to the armed robbery conviction. Turner filed an appeal from the judgment of conviction, challenging the denial of his motion for a directed verdict of acquittal and the exclusion of certain trial testimony. We affirmed the convictions in an unpublished opinion.1 Turner later filed a pro se “Motion to Vacate and Correct an Illegal Sentence or Alternatively to Merge Sentences.” He appeals from the denial of the motion. 1. Turner contends the conviction for possession of a firearm during the commission of a crime aggravated assault should have merged with the aggravated assault conviction because the same evidence was used to prove both offenses. This argument presents no basis for reversal.

The two crimes do not merge because, as we have noted in other cases, the legislature intended to impose additional punishment against a person who uses a firearm during the commission of certain crimes, including aggravated assault.2 Thus, the trial court properly refused to merge the convictions for possession of a firearm during the commission of a crime and aggravated assault.3