Ricky Hutchins was convicted of malice murder, armed robbery, and motor vehicle theft. This Court affirmed the convictions in Hutchins v. State , 261 Ga. 366 404 SE2d 548 1991. In December 2007, Hutchins filed a pro se motion to vacate a void and illegal sentence, contending that the conviction and sentence for armed robbery must be merged into the malice murder conviction. Hutchins appeals from the trial court’s order denying this motion. Since Hutchins alleged a ground that could void a conviction and sentence, that order is directly appealable. Chester v. State , 284 Ga. 162 SE2d 2008. Hutchins relies on Huynh v. King , 95 F3d 1052, 1060 II C 11th Cir. 1996, which holds that, under Georgia law, “armed robbery may be a lesser included offense of malice murder where a defendant is a conspirator in an armed robbery scheme and a murder occurs as a probable consequence of that armed robbery. Cit.” However, this principle has never been applied in Georgia where “the evidence was sufficient to support a jury finding that the defendant took part in a common plan to commit both malice murder and armed robbery.” Massey v. State , 243 Ga. 228, 232 10 253 SE2d 196 1979. See also White v. State , 255 Ga. 210, 215 10 336 SE2d 777 1985; Hoerner v. State , 246 Ga. 374 1 271 SE2d 458 1980. In this case, we have already held that “the evidence was sufficient to support a finding that Hutchins took part in a plan to commit both the malice murder and the armed robbery. As a result, the armed robbery was not a lesser included offense of the malice murder . . . .” Hutchins v. State , supra at 368 3. This ruling is the law of the case and, thus, is binding on this Court. See Langlands v. State , 282 Ga. 103, 104 2 646 SE2d 253 2007 ” ‘The “ law of the case” doctrine is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases. Cit.’ Cit.”; Putnam v. State , 264 Ga. App. 810 1 592 SE2d 462 2003 double jeopardy ruling.
Moreover, the holding on which Hutchins relies is no longer viable in light of Drinkard v. Walker , 281 Ga. 211 636 SE2d 530 2006, in whichwe disapproved the “actual evidence” test and adopted the “required evidence” test for determining when one offense is included in another under OCGA § 16-1-6 1. Thus, a single act may constitute an offense which violates more than one statute, ” ‘and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ Cit.” Cit.Waits v. State , 282 Ga. 1, 4 2 644 SE2d 127 2007. The principle stated in Huynh is an application of the “actual evidence” test.
