Tampering with evidence, etc. Clarke Superior Court. Before Judge Sweat.
Judgment reversed and case remanded.
John W. Donnelly, for appellant.
Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
Doyle, Presiding Judge.
George Haynes appeals from his conviction for tampering with evidence and committing financial transaction card fraud, contending that he was incorrectly sentenced for felony tampering because the indictment was ambiguous as to whether it alleged the felony or misdemeanor version of that offense. For the reasons that follow, we agree and remand the case for resentencing.
Based on his role in a burglary by an alleged accomplice resulting in the stabbing death of the victim, Haynes was indicted for felony murder, burglary, aggravated assault, armed robbery, possession of a knife during the commission of a crime, tampering with evidence, and financial transaction card fraud. Following a jury trial during which his alleged accomplice testified, Haynes was acquitted of all counts except for tampering with evidence and financial transaction card fraud. The trial evidence showed that Haynes's alleged accomplice entered a mobile home to steal money and encountered the occupant, whom he killed during a struggle over a knife. The alleged accomplice then fled through a wooded path to a retail parking lot where Haynes was waiting in a car. The tampering charge arose from evidence that Haynes disposed of his alleged accomplice's blood spattered jumpsuit and the victim's wallet in a dumpster after the burglary.
The trial court sentenced Haynes to ten years confinement for the tampering count and two years concurrently for the fraud count. [331 Ga.App. 105] Haynes now appeals the sentence on the tampering count, arguing that the trial court erred by sentencing him for a felony when the indictment did not clearly charge him with a felony.
OCGA § 16-10-94 (c) provides the sentencing structure for tampering with evidence:
... [A]ny person who [commits the offense of tampering with evidence] involving the prosecution or defense of a felony and involving another person shall be guilty of a felony and, upon conviction thereof, shall
be punished by imprisonment for not less than one nor more than three years; provided, however, that any person who violates subsection (a) of this Code section involving the prosecution or defense of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1 and involving another person shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years. Except as otherwise provided in this subsection, any person who ...