☢ test - Í

weapon; similar transactions; intentional physical harm to victim, transport of the victim, and physical restraint of the victim. “The statute, however is silent in regard as to who carries the burden of establishing the absence of the factors that would permit a downward departure. This silence creates an ambiguity. See State v. Langlands, 276 Ga. 721, 724(2), 583 S.E.2d 18 (2003). And, where the language in a criminal statute is ambiguous, it must be construed in favor of the defendant. State v. Mills, 268 Ga. 873, 875, 495 S.E.2d 1 (1998). Thus, the trial court did not err in doing so.” Trial court did properly decline downward deviation on one count of sodomy which involved transporting the victim. New v. State, 327 Ga.App. 87, 755 S.E.2d 568 (March 27, 2014). Convictions for sexual exploitation of children and related offenses affirmed, but sentences vacated and remanded. Trial court erred by sentencing defendant for various sexual offenses without including at least one year of probation on each count as required by OCGA § 17-10-6.2 (titled “Sentencing of persons convicted of a sexual offense”). “The Code section … provides, in relevant part, that ‘any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to the offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and such sentence shall include, in addition to the mandatory imprisonment, an additional probated sentence of at least one year.’ … New was sentenced to serve 140 years with a remaining 10 years served on probation. Although his sentences fall within the acceptable statutory range, the overall sentence itself violates OCGA § 17–10–6.2 because the trial court failed to impose a split sentence as to each count for which New was convicted, as required by the express terms of the statute.” Accord, Clark v. State , 328 Ga.App. 268, 761 S.E.2d 826 (July 14, 2014) (trial court couldn’t sentence defendant to twenty years to serve on first child molestation conviction; code section requires split sentence with at least one year of probation). CCC. VACATE SENTENCE, MOTION TO See POST-CONVICTION RELIEF – VOID SENTENCE, MOTION TO VACATE, above DDD. VICTIM IMPACT STATEMENT Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (November 1, 2010). Convictions for malice murder and related offenses affirmed; 1. no error “in allowing oral, rather than written or read, victim impact statements from the family of the murder victim. While this Court has noted with approval the reading of prepared statements by victim impact witnesses, Turner v. State, 268 Ga. 213, 214-215(2)(a) (486 S.E.2d 839) (1997), the fact that such a procedure is not followed does not mean that ‘this omission resulted in the admission of unlawfully prejudicial testimony and/or courtroom demeanor that the recommended procedure was designed to avoid. [Cit.]’ Lance v. State, 275 Ga. 11, 24(27) (560 S.E.2d 663) (2002).” 2. Trial court properly admitted evidence of “‘any request for psychological services initiated by the victim or the victim's family as a result of the offense [and] other information related to the impact of the offense upon the victim [or] the victim's family....’ OCGA § 17-10-1.2(b)(5) & (6).” Lyons v. State, 282 Ga. 588, 652 S.E.2d 525 (October 29, 2007). Convictions and sentences for malice murder and related offenses affirmed. “‘Victim impact evidence is not unconstitutional in the sentencing phase in general.’ Braley v. State, 276 Ga. 47, 54(33) (572 S.E.2d 583) (2002).” Overruled on other grounds, Garza v. State , 284 Ga. 696, 670 S.E.2d 73 (December 15, 2008). Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (November 6, 2006). Sentence for murder and related offenses affirmed. “Thomason argues that the trial court erred by denying his motion to declare as unconstitutional the statute allowing victim impact evidence during sentencing, OCGA § 17-10-1.2. As Thomason concedes, however, this Court has previously addressed his arguments and has found OCGA § 17-10-1.2 to be constitutional. See Livingston v. State, 264 Ga. 402(1) (444 S.E.2d 748) (1994).” Cronan v. State, 236 Ga.App. 374, 511 S.E.2d 899 (February 9, 1999). Convictions and sentences for vehicular homicide and related offenses affirmed. No advance notice of victim impact testimony at sentencing hearing was required by OCGA § 17-10-2(a). “Oral victim impact testimony is not controlled by the notice provision of OCGA § 17-10-2(a) and is not the type of evidence ‘in aggravation of sentence’ contemplated by that statute, e.g., ‘any prior criminal convictions and pleas of guilty or nolo contendere of the defendant.’ OCGA § 17-10-2(a). Instead, the introduction of oral victim impact testimony is controlled by OCGA § 17-10-1.2, and the introduction of such evidence is solely within the discretion of the trial court. Cronan has neither alleged nor shown an abuse of such discretion.” EEE. VINDICTIVENESS See also subheading RESENTENCING, above