Over a number of cases and a number of years, the Georgia Court of Appeals advanced a position that the rule of lenity did not apply when both offenses were felonies. Shabazz v. State, 273 Ga. App. 389 (2005); Rollf v. State, 314 Ga. App. 596 (2012); Fyfe v. State, 305 Ga. App. 322 (2010); Poole v. State, 302 Ga. App. 464 (2010); Falagian v. State, 300 Ga. App. 187 (2009). The Georgia Supreme Court found on July 1, 2013, that that interpretation of the law was wrong and was disapproved. The opinion in McNair v. State is available here.
The rule of lenity is a rule under which courts construe or interpret statutes. Where there are different punishments for the same offense, the court should use the lowest punishment offense. This is fairly clear where one offense is a felony and one is a misdemeanor.
Certainly, different felonies may be subject to different punishments. For instance, in the McNair case, the defendant McNair was charged with and convicted of the offense of identity fraud, which carries a penalty up to ten years imprisonment and up to $100,000 in fines. McNair argued that what he had actually done was financial transaction card fraud, which has a penalty up to three years imprisonment and up to $5,000 in fines. Both offenses are felonies. The Court of Appeals said that notwithstanding a difference of seven years of incarceration that the punishment for these offenses was the same because they were both felonies and that the rule of lenity did not apply.
The Georgia Supreme Court held that the question presented is whether the stautes in question present an ambiguity which could result in varying degrees of punishment. The court reversed the Court of Appeals and the trial court and sent the case back for the trial court to make new findings as to whether there was ambiguity as to the two statutes and the conduct at issue in this case such that the rule of lenity would apply.
In the McNair case, identify fraud is defined as: “(a) A person commits the offense of identity fraud when he or she willfully and fraudulently: (1) Without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person;....” On the other hand, financial card transaction fraud is defined as: “(a) A person commits the offense of financial transaction card theft when:(1) He takes, obtains, or withholds a financial transaction card from the person,possession, custody, or control of another without the cardholder's consent; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder;....”
The opinion provided no details as to the precise conduct which McNair is alleged to have performed. McNair was represented on appeal by the Public Defender's Office in Dalton and the Georgia Public Defender Standards Council.
The expansion of the rule to its appropriate parameters will benefit many defendants and will help assure appropriate punishment of offenses. Legislative expansion of the criminal code has created many situations where the same conduct may give rise to multiple possible offenses. The Court of Appeals erroneous rule had prevented the proper exploration of those issues.
Sean A. Black handles criminal defense matters throughout Georgia and particularly in Northeast Georgia and criminal appeals and post-judgment work throughout the state.