Opinion
A94A1589.
DECIDED OCTOBER 5, 1994.
Aggravated assault, etc. DeKalb Superior Court. Before Judge Hancock.
Jennifer B. Mann, for appellant.
J. Tom Morgan, District Attorney, Robert M. Coker, Thomas S. Clegg, Assistant District Attorneys, for appellee.
Defendant was tried before a jury and found guilty of aggravated assault as a lesser included offense of murder (while in the commission of an aggravated assault) (Count 1), possession of a firearm during the commission of a crime (murder alleged in Count 1) (Count 2) and possession of a firearm while on probation (as a first offender) for committing burglary (Count 3). This appeal followed the denial of defendant's motion for new trial. Held:
In his sole enumeration, defendant contends the trial court erred in failing to grant his motion "to bifurcate the possession of a firearm by a first offender probationer count from the other unrelated counts in the indictment."
Even though defendant was indicted in Count 1 for murder (while in the commission of an aggravated assault), "[t]he possession [of a firearm while on probation (as a first offender) for committing burglary] charge was material to the felony murder charge since it could have served as the underlying felony for a felony murder conviction. Williams v. State, 263 Ga. 135 ( 429 S.E.2d 512) (1993); Cauley v. State, 260 Ga. 324, 325 (1) ( 393 S.E.2d 246) (1990). See also Iona v. State, 260 Ga. 83, 85 (4) ( 389 S.E.2d 754) (1990). Thus, the trial court was not required to bifurcate the charges as [defendant] requested. Williams v. State, supra; Cauley v. State, supra; see also Brown v. State, 263 Ga. 89, 90 (2) ( 428 S.E.2d 78) (1993)." (Emphasis supplied.) Robinson v. State, 263 Ga. 424, 425 (2) (a) ( 435 S.E.2d 207). See Harris v. State, 263 Ga. 526, 527 (3) ( 435 S.E.2d 669). Consequently, the trial court did not abuse its discretion in refusing defendant's motion to bifurcate. Appling v. State, 256 Ga. 36, 37 (1) ( 343 S.E.2d 684) (1986).
Judgment affirmed. Pope, C. J., and Smith, J., concur.