                              FIRST DIVISION
                               DOYLE, C. J.,
                          ANDREWS, P. J., and RAY, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                       June 9, 2016




In the Court of Appeals of Georgia
 A16A0547. ZAMUDIO v. THE STATE.                                              DO-019 C

      DOYLE, Chief Judge.

      This is the second appearance of this case before this Court. In 2015, this Court

affirmed the judgments of conviction of Antonio Jesus Zamudio and his co-defendant

for attempted murder,1 aggravated assault,2 aggravated battery,3 and a violation of the

Georgia Street Gang Terrorism and Prevention Act, OCGA §§ 16-15-4 (a), 16-15-3

(1) (J) (“Street Gang Act”).4 This Court vacated the defendants’ sentences and

remanded for resentencing after holding that the trial court erred by merging the


      1
          OCGA §§ 16-4-1, 16-5-1 (a).
      2
          OCGA § 16-5-21 (b) (2).
      3
          OCGA § 16-5-24 (a).
      4
          See Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733) (2015).
defendants’ aggravated battery counts into the attempted murder counts.5 Having

been resentenced, Zamudio appeals, arguing that the trial court erred by failing to

merge the aggravated battery count into the gang activity count. For the reasons that

follow, we affirm.

      After remand, the trial court held a resentencing hearing and merged Count 2

(Criminal Attempt to Commit Murder) and Count 3 (Aggravated Assault) into Count

4 (Aggravated Battery). At the resentencing hearing, Zamudio argued that Count 4

(Aggravated Battery) should merge into Count 1 (Violation of the Street Gang Act)

because Count 4 was a predicate act for Count 1. The trial court declined to merge the

counts, sentencing Zamudio to 20 years to serve 10 in incarceration for Count 1 and

15 years to serve 10 in incarceration for Count 4 to run concurrent to Count 1.

      Zamudio argues that the trial court erred by declining to merge Count 4 into

Count 1. He maintains that the Legislature failed to include language prohibiting

courts from merging gang activity convictions, and therefore, the general rules of

merger as required under Drinkard v. Walker,6 and as codified in OCGA § 16-1-7

apply to require merger in this case.

      5
          See id. at 48 (7).
      6
          281 Ga. 211, 215, 217 (636 SE2d 530) (2006).

                                          2
      After briefing in this case, this Court decided Nolley v. State,7 in which this

Court held that by enacting OCGA § 16-15-4 (m), the Legislature had determined that

predicate acts for any offenses listed in the Street Gangs Act do not merge with the

separately charged violation of the Street Gangs Act.8 Accordingly, this enumeration

is without merit.

      Judgment affirmed. Andrews, P. J. and Ray, J., concur.




      7
          335 Ga. App. 539 (782 SE2d 446) (2016).
      8
          See id. at 544-545 (2).

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