CRIMINAL PRACTICE: Aggravated Sodomy, Aggravated Child Molestation
Alert: The Court of Appeals adopted the Supreme Court's judgment that defendant's aggravated sodomy conviction should be vacated since the state presented no evidence that he used force to commit sodomy against the 11-year-old victim.
Subject Matter Index: Remittitur.
Headnote: In Brewer v. State, 271 Ga. 605 (1999), the Supreme Court reversed David Roy Brewer's aggravated sodomy conviction, holding that the state must prove force to obtain a conviction for aggravated sodomy against a victim under the age of consent. The Court also remanded Brewer's case with direction that the Court of Appeals instruct the trial court to vacate Brewer's aggravated sodomy conviction and sentence him for aggravated child molestation. Accordingly, the Court of Appeals has vacated its decision in Brewer v. State, 236 Ga. App. 546 (1999), with direction and adopted the judgment of the Supreme Court as its own.
Text: Andrews, Gary Blaylock, JudgeIn Brewer v. State, 236 Ga. App. 546 (512 SE2d 30) (1999), we affirmed the judgment of conviction and sentence entered by the trial court on the jury's verdict finding Brewer guilty of aggravated sodomy. In Brewer v. State, __Ga.__ (Case No. S99G0864, decided November 1, 1999), the Supreme Court reversed the judgment of this Court and remanded the case with direction to instruct the trial court to vacate Brewer's conviction and sentence for aggravated sodomy and to enter a judgment of conviction and sentence on the jury's verdict finding Brewer guilty of aggravated child molestation. The Supreme Court further directed that, after entry of the sentence for aggravated child molestation, Brewer shall have the right to pursue an appeal from his conviction for that offense. Accordingly, the judgment of the Supreme Court being made the judgment of this Court, the judgment of conviction and sentence entered by the trial court is vacated with direction.
Judgment and sentence vacated with direction. Ruffin and Ellington, JJ., concur.
Trial Judge: Coy H. Temples, Whitfield Superior Court.,
Attorneys: Michael R. McCarthy, Dalton, for appellant. Kermit N. McManus, District Attorney, and Stephen E. Spencer, Assistant District Attorney, Dalton, for appellee.,