GA Supreme Court Applies Rule of Lenity in Identity Fraud Case

McNair was charged for the theft and use of another’s credit card under Georgia’s identity fraud statute. He was tried by a jury, convicted, and sentenced as a recidivist to 10 years (five to serve) for identity fraud. Prior to sentencing, McNair argued that the rule of lenity required that he be sentenced for the offense of financial transaction card theft. This crime is also classified as a felony, but provides for a lesser punishment than the identity fraud statute. The trial court rejected this argument, and the Court of Appeals affirmed, ruling that the rule of lenity did not apply in this case because both crimes were felonies.

The Supreme Court of Georgia noted that the rule of lenity provides that when two statutes allow for different punishments for the same offense conduct, the ambiguity should be resolved in favor of the defendant. When the rule applies, the defendant shall receive the lesser of the two punishments.

In Shabazz v. State, the Court of Appeals had previously held that the rule of lenity did not apply when both statutes provided for felony sentences. The Supreme Court disapproved of Shabazz and the line of cases that followed it. While the Georgia Supreme Court had previously held that the rule applies when there is a possibility of either a felony or misdemeanor sentence for the same offense conduct, the Court pointed out that it has never held that this is the only situation where it applies. Thus, the Court concluded that whether the statutes establish felony or misdemeanor punishments is irrelevant as the central question is whether the two statutes provide for varied punishments for the same conduct. If so, the rule of lenity will apply and the defendant shall receive the lesser punishment.