In this appeal, we consider whether the trial court erred by allowing the state to use a prior felony conviction to prove the offense of possession of a firearm by a convicted felon, then permitting the state to use that same prior conviction to seek recidivist treatment in sentencing. We hold that the state could not properly use the prior conviction for both purposes. Therefore, we affirm the convictions but vacate the sentences and remand the case for resentencing in accordance with this opinion. After the first phase of a bifurcated jury trial, Bobby Lee Arkwright was found guilty of hijacking a motor vehicle, armed robbery, battery, possession of a firearm during the commission of a crime hijacking a vehicle, and possession of a firearm during the commission of a crime armed robbery. During the second phase of the trial, the state sought to prove the charge of possession of a firearm by a convicted felon. To support that charge, the state introduced Exhibit 14, which was a certified copy of Arkwright’s prior felony conviction of possession of marijuana with intent to distribute. The jury found him guilty of possession of a firearm by a convicted felon. The court entered judgments of conviction on the verdict.
At sentencing, the state again introduced Exhibit 14, this time to support recidivist treatment under OCGA § 17-10-7 a.1 The trial court expressly treated Arkwright as a recidivist and imposed the maximum sentence for each of the felonies. Arkwright filed an application for sentence review and a motion for new trial. The trial court resentenced Arkwright, but only dropped recidivist punishment for the possession of a firearm by a convicted felon charge. The sentences on the other convictions were not changed.
