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Lawskills.com Georgia Caselaw
BUNDREN v. THE STATE.
62700.
BANKE, Judge.
Aggravated assault. Catoosa Superior Court. Before Judge Loggins.
The appellant was convicted of aggravated assault upon a police officer engaged in the performance of his official duties (see Code Ann. 26-1302), based on evidence that he shot at a state patrol officer from a speeding vehicle. We affirmed in Bundren v. State, 155 Ga. App. 265 (270 SE2d 807) (1980); however, the Supreme Court reversed on certiorari, holding that the trial court had erred in failing to instruct the jury that in order to be convicted of the offense as charged, the appellant must have acted with knowledge that the person he assaulted was a police officer engaged in the performance of his official duties. Bundren v. State, 247 Ga. 180 (2) (274 SE2d 455) (1981). The Supreme Court ordered that the case "be remanded for a new trial or appellant may be resentenced for the lesser included offense of aggravated assault." Id. at 182.
Upon remand, the trial court elected to resentence the appellant aggravated assault rather than to retry him. In this appeal from the new sentence, the appellant contends that he was entitled to a new trial, both on the basis of the Supreme Court's order and on the basis of several errors which allegedly occurred during his first trial. Held:
The language of the Supreme Court decision unambiguously gave the trial court the option of resentencing the appellant for aggravated assault rather than retrying him for aggravated assault on a police officer engaged in the performance of his official duties. The conviction for aggravated assault has, in effect, been affirmed, and the remainder of the appeal consequently presents nothing for this court to review. See generally Akins v. State, 237 Ga. 826 (229 SE2d 645) (1976); Smith v. State, 146 Ga. App. 727, 728 (247 SE2d 503) (1978).
D. L. Lomenick, District Attorney, Ralph L. Van Pelt, Jr., Assistant District Attorney, for appellee.
Neil Wester, for appellant.
DECIDED OCTOBER 19, 1981 -- REHEARING DENIED NOVEMBER 13, 1981 -- CERT. APPLIED FOR.
Thursday May 21 23:54 EDT


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