A jury found Immanuel Williams guilty of voluntary manslaughter and the trial court sentenced him initially to 15 years with 12 to serve and 3 years probated. Williams filed a motion to modify the sentence, and the court resentenced him to 20 years to serve 9, and 11 years probated. In Williams v. State , 273 Ga. App. 42 614 SE2d 146 2005, Williams appealed that modification, arguing that the court had actually increased his sentence and this constituted double jeopardy. This Court agreed. See Williams, supra at 47, in which this Court vacated Williams’s sentence and remanded the case to the trial court for resentencing. On resentencing, the trial court reinstated Williams’s original sentence. Although Williams received what he asked for in his first appeal, namely that the modified sentence be vacated, he nevertheless filed this second appeal, arguing that being resentenced to his original sentence was an impermissible increase over the modified sentence. He claims that this increased sentence violates his due process rights because it was a result of vindictive sentencing. See North Carolina v. Pearce, 395 U. S. 711, 723, 89 S. Ct. 2072, 23 L. Ed.2d 656 1969; Anthony v. Hopper , 235 Ga. 336, 337 219 SE2d 413 1975 “There is no absolute constitutional bar to imposing a more severe sentence upon resentencing, but vindictiveness must not be the motivating force behind the increased sentence.”
This argument fails for at least two reasons. First, Williams is judicially estopped from asserting this claim. He initially claimed that the court erred and he was harmed because his modified sentence, which increased his total sentence five years and his probation time by eight years was an impermissible increase over his original sentence. See Williams , supra at 46 “Williams contends that the trial court erred by increasing his sentence after he had already begun serving it.” Williams now comes before this Court contending the opposite, that it is his original sentence that is an increased sentence over the modified sentence because it contains three more years to serve than the modified sentence.
