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constitutes an increase of the modified (vacated) sentence. Held, this contention is barred by the prior Appeals ruling, and by judicial estoppel. As to ‘law of the case’ : “[A]lthough the ‘law of the case’ rule has been statutorily abolished, ‘any ruling by the Supreme Court of the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.’ OCGA § 9-11-60(h). This law of the case rule is not confined to civil cases, but applies also to rulings made by appellate courts in criminal cases. See Roulain v. Martin , 266 Ga. 353, 354, 466 S.E.2d 837 (1996). There is an exception to this rule when the evidentiary posture of the case changes such that ‘the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented.’ Day v. State , 242 Ga.App. 899, 900, 531 S.E.2d 781 (2000).” See Procedure – “Law of the Case” Rule, above. As to judicial estoppel : Applies judicial estoppel, citing with approval Gantt v. State , 263 Ga.App. 102, 105, 587 S.E.2d 255 (2003), overlooking holding in Roberts v. State , 278 Ga. 610, 604 S.E.2d 781 (November 8, 2004) (Judicial estoppel can’t be applied to the State or the defendant in a criminal case). See Procedure – Judicial Estoppel, above. McFadden v. State , 243 Ga.App. 896, 534 S.E.2d 566 (May 11, 2000). Defendant pled guilty to cocaine possession and was sentenced under the First Offender Act after representing that he’d never been convicted of a felony “anywhere or anytime.” The State subsequently learned that defendant had a prior conviction for cocaine possession in New Jersey. Held, the trial court properly resentenced defendant upon learning of his misrepresentation. “Inasmuch as defendant complains of error resulting from his own misconduct, waiver of any right to complain thereof on appeal results. [ Cunningham v. State, 239 Ga.App. 889, 891, 522 S.E.2d 480 (1999)], citing Bevil v. State, 220 Ga.App. 1, 3(7)(b), 467 S.E.2d 586 (1996) and Johns v. State, 223 Ga.App. 553, 554(2), 479 S.E.2d 388 (1996). Defendant's claims of error as to his treatment as a first offender are therefore likewise without merit.” Linson v. State, 239 Ga.App. 658, 522 S.E.2d 55 (August 18, 1999). At trial, defendant was convicted of sodomy and aggravated child molestation; the sodomy conviction was merged into the aggravated child molestation for sentencing. The aggravated child molestation conviction was then overturned on appeal. Held, on remand the trial court properly resentenced on the sodomy conviction. “On remand, the trial court had the power to ‘unmerge’ the sodomy conviction from the defective aggravated child molestation conviction and to re-sentence on the sodomy conviction alone. The Supreme Court of Georgia has reinstated formerly merged convictions and remanded the case to the trial court for sentencing on those convictions. See, e.g., Briscoe v. State, 263 Ga. 310, 311(2), 431 S.E.2d 375 (1993); Thompson v. State, 263 Ga. 23, 26(2), 426 S.E.2d 895 (1993). We have specifically held that on remand a trial court may reconsider any merger issues and sentence accordingly. Hunter v. State, 228 Ga.App. 846, 847-848, 493 S.E.2d 44 (1997); see Duffey v. State, 222 Ga.App. 802, 804(2), 476 S.E.2d 89 (1996).” 2. RIGHT TO BE PRESENT/HAVE COUNSEL PRESENT Robertson v. State, 280 Ga. 885, 635 S.E.2d 138 (September 18, 2006). On remand from prior appeal, trial court was directed to enter life sentence; it did so without defense counsel present. Held, this did not violate defendant’s right to counsel, as trial court was without discretion in sentence to be entered. “[I]n instances where a defendant’s entire sentencing package has been vacated on appeal and, at resentencing, the trial court has full discretion to reconstruct the sentence and impose a more lenient punishment, the defendant retains a right to appointed counsel. Hall v. Moore, 253 F.3d 624 (11 th Cir., 2001). On the other hand, where the defendant’s sentence is mandatory or fixed in such a way that, at resentencing, the trial court is without discretion, the resulting resentencing proceeding is purely ministerial, and it is unnecessary for the defendant to be present at the sentencing hearing or be represented by counsel. Golden v. Newsome, 755 F.2d 1478, 1483, n. 9 (11 th Cir., 1985). See also, Shaheed v. State, 274 Ga. 716 (559 S.E.2d 466) (2002); Sullivan v. State, 229 Ga. 731 (194 S.E.2d 410) (1972); Hammond v. State, 277 Ga.App. 148 (625 S.E.2d 503) (2005) (defendant’s presence not required at re-sentencing regarding merger).” Followed, McGruder v. State , 307 Ga.App. 379, 705 S.E.2d 175 (October 15, 2010) (trial court could amend sentence, entered as 15 years to serve, to reflect that 10 of the years were on the armed robbery charge and the other 5 years were on the firearm charge, without defendant being present). Hammond v. State, 277 Ga.App. 148, 625 S.E.2d 503 (December 22, 2005). “We … find no harm in the trial court’s re- sentencing of Hammond without Hammond being present. The re-sentencing was based on the proper merging of the conspiracy counts with crimes Hammond conspired to commit, and Hammond’s sentence was not increased. See Shaheed v. State, 274 Ga. 716, 717 (559 S.E.2d 466) (2002) (‘[ I]f re-sentencing only involves a ministerial function, a defendant need not be present’ ) (citations omitted); see also Westmoreland v. State, 156 Ga.App. 444(2) (274 S.E.2d 801) (1980) (even assuming error from defendant’s absence at re-sentencing, no harm where sentence was reduced).” 3. VINDICTIVENESS