MILLER, P. J., RICKMAN and REESE, JJ.
Alexander Thomas was convicted on two counts of possession of
a firearm by a first offender probationer; he was acquitted
of several other crimes. The court sentenced Thomas to five
years on both counts, to run consecutively. Following the
denial of his motions for new trial and to modify his
sentence, he appeals, alleging three errors that all turn on
whether the trial court was required to merge the two
sentences. For the reasons that follow, we affirm but remand
record shows that in Counts 5 and 7, the State charged Thomas
with two instances of the same crime using identical language
except for the date. In Count 5, Thomas was charged with
the offense of POSSESSION OF FIREARM BY FIRST
OFFENDER PROBATIONER in violation of O.C.G.A.
16-11-131(b) for the said accused person, in the County of
DeKalb and State of Georgia, on or about the 3rd day
of March, 2016, did knowingly and without lawful
authority, possess a handgun, a firearm; while on probation
as a felony first offender on Indictment Number 14CR1792, in
the Superior Court of DeKalb County on October 09, 2014, for
the offense of Theft by Taking.
(Emphasis in original.) In Count 7, Thomas was charged with
the identical language and emphasis, with the only change
being that the date was alleged as "on or about
the 5th day of March, 2016." (Emphasis in
trial, Thomas, a drug dealer, testified that on March 3,
2016, he drove to an apartment complex to meet a woman and
sell her some drugs. Thomas had a loaded weapon in his
possession at the time, although he knew that, as a
probationer, such possession would violate his probation.
Upon arrival, the woman asked Thomas to come to an apartment,
and, while he waited at the door, the woman went inside.
Thomas then heard fighting, so he entered the apartment, saw
a man beating the woman, and attempted to break up the fight
by striking the man with his gun. When the man pulled out
what appeared to be a weapon, Thomas fired his gun at the man
multiple times and fled. The shell casings recovered from the
scene showed that Thomas fired a .38 caliber weapon. Later
that day, Thomas traded the gun for a second gun, a revolver,
and he placed that weapon in the middle console of his
vehicle. Thomas was arrested on March 5, 2016, and officers
found a loaded, .32 caliber firearm in the middle console of
its deliberations, the jury sent a note to the court, which
the court described as follows:
"Please confirm this is correct: Charge 5, possession of
firearm by F.O.P. due to handgun." Handgun is
underlined. "Charge 7, possession of firearm by F.O.P.
due to revolver." Revolver is underlined.
asked to clarify the question, the jury responded, "What
is the difference between charge 5 and 7?" The court
eventually replied to the jury, "the dates of the
alleged offenses." Thomas's counsel did not object.
The court did not otherwise charge the jury regarding whether
the date in the relevant counts was a material allegation.
was convicted on both Counts 5 and 7; he later filed a motion
to modify his sentence and a motion to file an out of time
appeal. The court granted the motion for out of time appeal,
as well as a second such motion, following which Thomas moved
for a new trial. Following a hearing on the motions to modify
sentence and for new trial, the trial court denied both
regard to the merger issue, the trial court held that
"because each count referred to a different period of
time, the date was made an essential averment of the count
which rendered each count of the indictment
distinguishable." The court added that each count
alleged a specific date, that the dates did not overlap, and
that "each count was supported by specific
distinguishable and independent evidence at trial."
Accordingly, the court held that merger of the two
convictions was not required.
his first enumeration, Thomas contends the trial court erred
by not merging the convictions on Counts 5 and 7. We agree.
is a long-standing principle of Georgia law that a date or
range of dates alleged in an indictment, without more, is not
a material allegation of the indictment, and, consequently,
unless the indictment specifically states that the alleged
dates are material, the State may prove that the alleged
crime was committed on any date within the statute of
limitations. See Bradford v. State, 285 Ga. 1, 4 (3)
(673 S.E.2d 201) (2009); Ledesma v. State, 251 Ga.
885, 885 (1) (a) (311 S.E.2d 427) (1984); Jackson v.
State, 64 Ga. 344, 347 (1) (1879). Thus, "such an
averment [of materiality] is necessary to overcome a plea of
double jeopardy to a subsequent charge of committing the ...