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SHAB v. THE STATE.
75837.
MCMURRAY, Presiding Judge.
Prostitution, etc. Fulton State Court. Before Judge Johnson.
Defendant was charged by accusation and convicted of the offenses of prostitution and solicitation of sodomy. Defendant contends that his conviction of solicitation of sodomy arose out of the same conduct as did his prostitution conviction and that his solicitation of sodomy conviction should have merged into the prostitution conviction as a lesser included offense. Held:
"One crime is included in another as a matter of fact if it is established by proof of the same or less than all the facts required to prove the other, i.e., if all the evidence needed to establish the one is 'used up' in proving the other. See OCGA 16-1-6 (1); Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (1982)." Moreland v. State, 183 Ga. App. 113, 114 (1) 358 SE2d 276). In the case sub judice, the conviction for prostitution was predicated on defendant's offer to perform sodomy for money. See Allen v. State, 170 Ga. App. 96 (1) (316 SE2d 500). Either of defendant's two offers to perform different acts of sodomy would support the prostitution conviction. Whichever of the offers to commit sodomy was not "used up" in supporting the prostitution conviction remained and authorized the conviction and sentence for the offense of solicitation of sodomy. Morris v. State, 179 Ga. App. 228, 229 (6) (345 SE2d 686).
James L. Webb, Solicitor, Norman R. Miller, Assistant Solicitor, for appellee.
Michael R. Hauptman, for appellant.
DECIDED MAY 31, 1988 -- REHEARING DENIED JUNE 14, 1988 -- CERT. APPLIED FOR.
Thursday May 21 12:53 EDT


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