Drinkard v. Walker

Summary

The Supreme Court of Georgia affirmed the habeas court's denial of Jerry Drinkard's petition, holding that his 1996 statutory rape and incest convictions do not merge into his rape conviction because proving each required additional facts — the victim's age and unmarried status for statutory rape, and her familial relationship for incest — so counsel was not ineffective for failing to argue merger. Seizing the occasion, the Court overruled State v. Estevez's 'actual evidence' test as unwieldy, productive of inconsistent results, and contrary to the plain language of OCGA § 16-1-6(1), and adopted Blockburger's 'required evidence' test for determining when one crime is 'included in' another. All the Justices concurred.