(b.1)Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16-13-30.
(Laws 1833, Cobb's 1851 Digest, p. 840; Code 1863, § 4562; Code 1868, § 4582; Code 1873, § 4676; Code 1882, § 4676; Penal Code 1895, § 1042; Penal Code 1910, § 1068; Code 1933, § 27-2511; Ga. L. 1953, Nov.-Dec. Sess., p. 289, § 1; Ga. L. 1974, p. 352, § 5; Ga. L. 1983, p. 3, § 14; Ga. L. 1984, p. 760, § 2; Ga. L. 1994, p. 1959, § 12; Ga. L. 2010, p. 563, § 1/HB 901; Ga. L. 2012, p. 899, § 4-4/HB 1176; Ga. L. 2013, p. 222, § 10/HB 349; Ga. L. 2015, p. 519, § 2-1/HB 328.)
Cross references.- Effect of third conviction for abandonment of child, § 19-10-1.
Parole generally, T. 42, C. 9.
Editor's notes.- Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994.'"
Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:
"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and
"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."
Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act." This Act became effective January 1, 1995.
Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."
Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."
Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."
Ga. L. 2015, p. 519, § 9-1/HB 328, not codified by the General Assembly, provides, in part, that: "The provisions of Part II of this Act shall be given retroactive effect to those sentences imposed before the effective date of Part II of this Act." The effective date of this Act is May 5, 2015.
Law reviews.- For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For annual survey of criminal law, see 57 Mercer L. Rev. 113 (2005); 58 Mercer L. Rev. 83 (2006). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017). For comment regarding presentation of guidance of prior convictions in trial of criminal recidivist in light of State v. Meyer, 258 Wisc. 326, 46 N.W.2d 341 (1951), see 14 Ga. B.J. 235 (1951).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- Many of the cases noted below were decided prior to the 1994 amendment of this Code section.
Constitutionality.
- O.C.G.A. § 17-10-7 does not constitute cruel and unusual punishment under the federal or state constitutions and does not violate an individual's due process or equal protection rights. Ortiz v. State, 266 Ga. 752, 470 S.E.2d 874 (1996); Gibson v. State, 233 Ga. App. 838, 505 S.E.2d 63 (1998); Worthy v. State, 237 Ga. App. 565, 515 S.E.2d 869 (1999); Brabham v. State, 240 Ga. App. 506, 524 S.E.2d 1 (1999); Shuman v. State, 244 Ga. App. 335, 535 S.E.2d 526 (2000).
O.C.G.A. § 17-10-7 does not violate the constitutional prohibition against cruel and unusual punishment or deprive defendants of due process. Hindman v. State, 234 Ga. App. 758, 507 S.E.2d 862 (1998).
Application of O.C.G.A. § 17-10-7(c) to defendant did not constitute application of an ex post facto law; enactment of an effective date provision in the Sentence Reform Act had no effect on the applicability of former subsection (b) (now subsection (c)) to sentences imposed prior to the effective date. Moore v. Ray, 269 Ga. 457, 499 S.E.2d 636 (1998).
O.C.G.A. § 17-10-6.1, which dictates the punishment for serious violent offenders, in conjunction with O.C.G.A. § 17-10-7, the sentencing statute applicable to recidivist armed robbers, does not violate either the federal or the state constitutions. Byrd v. State, 236 Ga. App. 485, 512 S.E.2d 372 (1999).
Imposition of a mandatory life sentence under O.C.G.A. § 17-10-7 does not violate the Eighth Amendment proscription against cruel and unusual punishment. Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).
Trial court did not unfairly enhance the defendant's sentence for armed robbery based on a previous aggravated child molestation conviction committed when the defendant was 13 years old as: (1) under O.C.G.A. § 16-3-1, the legislature made the age of 13 the age of criminal responsibility in Georgia; (2) the legislature did not elect to carve out an exception that would exempt youthful offenders from the sentencing provisions of O.C.G.A. § 17-10-7(b)(2); and (3) the Georgia Supreme Court upheld the constitutionality of the "two violent felonies" statute, § 17-10-7(b)(2). Lee v. State, 267 Ga. App. 834, 600 S.E.2d 825 (2004).
Conviction for possession of a firearm by a convicted felon could not stand because the same prior conviction could not support both recidivist sentencing and a conviction of possession of a firearm by a convicted felon, and also a nolo contendere plea could not serve as proof of a prior conviction for charge of possession of a firearm by a convicted felon; prior conviction remained available to support enhanced sentencing as a recidivist, however. Wyche v. State, 291 Ga. App. 165, 661 S.E.2d 226 (2008), cert. denied, No. S08C1413, 2008 Ga. LEXIS 914 (Ga. 2008).
Effect of 2012 amendment.
- O.C.G.A. § 17-10-7 was amended in 2012 to make subsection (c) no longer applicable to a sentence imposed for simple possession of a controlled substance in violation of O.C.G.A. § 16-13-30 (a). Barber v. State, 350 Ga. App. 309, 827 S.E.2d 733 (2019).
Purpose of O.C.G.A. § 17-10-7 is to see that persons with at least three prior felony convictions serve the maximum time imposed in a sentence for a subsequent felony conviction. Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981).
Defendant's sentence of 30 years without parole for trafficking in cocaine was a sentence allowed under O.C.G.A. § 16-13-30(d), and hence, not illegal or void. Defendant could not have been sentenced under O.C.G.A. § 17-10-7(a), or the defendant's sentence would have been 40 years. Because the sentence was not void, it was not subject to modification under O.C.G.A. § 17-10-1(f). State v. Blue, 304 Ga. App. 471, 696 S.E.2d 692 (2010).
Separation of powers.
- O.C.G.A. § 17-10-7 does not violate the separation of powers doctrine of the state constitution. Brabham v. State, 240 Ga. App. 506, 524 S.E.2d 1 (1999).
Ex post facto clause not violated.
- Because the offense for which the defendant was sentenced occurred after the effective date of O.C.G.A. § 17-10-7, there was no violation of the ex post facto clause even though the defendant's previous conviction occurred before that date. Johnson v. State, 229 Ga. App. 400, 493 S.E.2d 926 (1997).
Decision of the State Board of Pardons and Paroles to eliminate the plaintiff's parole eligibility which constituted a change in the policy of the Board to grant parole to persons convicted under the recidivist statute did not violate the ex post facto clause of the United States Constitution. Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000), cert. denied, 531 U.S. 1196, 121 S. Ct. 1200, 149 L. Ed. 2d 114 (2001).
When it was clear from the record that the defendant was sentenced on two separate accusations in 2001 that were not consolidated for trial, under O.C.G.A. § 17-10-7(d), the trial court properly refused to treat the two charges as one offense for purposes of recidivism. Although trial counsel testified that at the time it was the policy of the district attorney's office to encourage defendants to plead on multiple accusations on the same day and to represent to them that those pleas would only count as one offense for purposes of recidivism, it was the law as provided in the applicable statutes rather than local practices that governed. Thomas v. State, 291 Ga. App. 795, 662 S.E.2d 849 (2008).
Decision limiting the parole board's authority to grant parole.
- Decision in Freeman v. State, 264 Ga. 27, 440 S.E.2d 181 (1994)--limiting the parole board's authority of the State Board of Pardons and Paroles to grant parole--and ultimately resulting in the Board's elimination of plaintiffs' parole eligibility did not violate the due process clause of the United States Constitution. Metheny v. Hammonds, 216 F.3d 1307 (11th Cir. 2000), cert. denied, 531 U.S. 1196, 121 S. Ct. 1200, 149 L. Ed. 2d 114 (2001).
Construed with
§ 42-7-1 et seq. - Youthful Offender Act (O.C.G.A. § 42-7-1 et seq.), unlike the First Offender Act (O.C.G.A. § 42-8-60 et seq.), does not authorize the discharge of a felony conviction and a conviction under the Youthful Offender Act may serve as a predicate for sentencing under O.C.G.A. § 17-10-7. Lazenby v. State, 221 Ga. App. 148, 470 S.E.2d 526 (1996).
Construed with § 16-13-30. - Both O.C.G.A. §§ 16-13-30(d) and17-10-7 give direction as to the imposition of punishment under specified aggravated circumstances; however, § 16-13-30(d) increases the maximum from 15 years to life for the subsequent offense, whereas O.C.G.A. § 17-10-7 does not increase the maximum but adds weight in favor of its imposition. Wainwright v. State, 208 Ga. App. 777, 432 S.E.2d 555 (1993).
Prior conviction under O.C.G.A. § 16-13-32.5(b) should be viewed the same as a prior conviction under O.C.G.A. § 16-13-30 for purposes of sentencing under the recidivist statute, O.C.G.A. § 17-10-7. Mikell v. State, 231 Ga. App. 85, 498 S.E.2d 531 (1998).
O.C.G.A. § 16-13-30(d) is interpreted as providing that, although the court may not sentence second time offenders under both O.C.G.A. §§ 16-13-30(d) and17-10-7(a), the court may sentence second time offenders under both § 16-13-30(d) and any remaining provisions of § 17-10-7. Blackwell v. State, 237 Ga. App. 896, 516 S.E.2d 787 (1999).
Because O.C.G.A. § 17-10-7 is the only recidivist provision that governs the situation when a defendant who has a prior felony conviction for armed robbery and who is subsequently convicted of a felony for selling cocaine, the trial court correctly applied that section in sentencing the defendant. Harden v. State, 239 Ga. App. 700, 521 S.E.2d 829 (1999).
In a prosecution for the sale of cocaine, the court was not required to impose a life sentence upon the defendant who had five previous drug convictions. The court retained the discretion either to impose any sentence within the statutory mandatory minimum and maximum sentence range or to impose a life sentence. Scott v. State, 248 Ga. App. 542, 545 S.E.2d 709 (2001).
Because the defendant was found guilty of possessing cocaine with the intent to distribute, defendant's third conviction for the possession of a controlled substance with the intent to distribute and the defendant's ninth felony conviction, the sentencing judge had the discretion to sentence the defendant under O.C.G.A. § 16-13-30(d) to "any sentence within the statutory mandatory minimum and maximum sentence range or to impose a life sentence" and was not required to sentence the defendant to life imprisonment under O.C.G.A. § 17-10-7(a). Mann v. State, 273 Ga. 366, 541 S.E.2d 645 (2001).
Because the defendant entered a guilty plea to possession of cocaine with intent to distribute, and the state introduced copies of a prior out-of-state drug conviction and a prior federal drug conviction, the trial court erred in sentencing the defendant to 30 years under O.C.G.A. §§ 16-13-30(d) and17-10-7(a). Papadoupalos v. State, 249 Ga. App. 300, 548 S.E.2d 59 (2001).
Trial court's decision to probate a portion of the sentence imposed on the defendant for the defendant's second conviction for possession of cocaine with intent to distribute, requiring the defendant to serve only seven years, was in direct contravention to O.C.G.A. § 16-13-30(d), which stated specifically that a second time offender was to have been imprisoned for not less than ten years; by the plain reading of § 16-13-30(d), a defendant must have served at least ten years in prison, and O.C.G.A. § 17-10-7(c), which applied to a second offense under § 16-13-30(b), required that the time have been served without parole. State v. Jones, 265 Ga. App. 493, 594 S.E.2d 706 (2004).
Trial court did not err in stacking two recidivist sentencing provisions by first sentencing the defendant to life in prison under former O.C.G.A. § 16-13-30(d), which at the time of the defendant's crime and sentencing required a life sentence for repeat offenders of § 16-13-30(b), and by then sentencing the defendant to life without parole under O.C.G.A. § 17-10-7(c), which required that upon conviction of a fourth felony, the defendant was not eligible for parole. Butler v. State, 277 Ga. App. 57, 625 S.E.2d 458 (2005).
Court of Appeals properly affirmed the imposition of a life sentence without parole against the defendant as a recidivist, under both O.C.G.A. §§ 16-13-30(d) and17-10-7(c), as the defendant was convicted and sentenced before the effective date of the 1996 amendment to § 16-13-30(d), thus making a life sentence the only sentence that the trial court could impose; further, because the instant felony conviction was the defendant's fourth, § 17-10-7(c) applied to the sentence by operation of subsection (e) of that statute, as enacted in 1994, so as to require the defendant to serve the sentence imposed by the trial court without the possibility of parole. Butler v. State, 281 Ga. 310, 637 S.E.2d 688 (2006).
Upon conviction for the sale of cocaine, the trial court properly sentenced the defendant under O.C.G.A. § 17-10-7(c) and not O.C.G.A. § 17-10-1(a)(1), to the minimum sentence of ten years imprisonment under O.C.G.A. § 16-13-30(d), without the possibility of parole, as the defendant had three prior felony convictions. Fortson v. State, 283 Ga. App. 120, 640 S.E.2d 693 (2006).
Trial court properly denied the defendant's plea withdrawal motion as the court fully informed the defendant that the sentence the court intended on imposing would be without parole, despite failing to advise the defendant of that fact prior to the acceptance of the plea; moreover, as methamphetamine was a Schedule II non-narcotic drug, the more general provisions of O.C.G.A. §§ 16-13-30(e) and17-10-7, and not O.C.G.A. § 16-13-30(c), applied. Thomas v. State, 287 Ga. App. 500, 651 S.E.2d 801 (2007).
Construed with § 16-13-31. - Recidivist sentence imposed upon the defendant was upheld on appeal, pursuant to O.C.G.A. §§ 16-13-31(a)(1)(A) and (h) and17-10-7(a), based on evidence of the defendant's 1993 convictions; hence, the defendant was properly sentenced to the longest period of time prescribed for the punishment of the offense and ordered to serve the mandatory minimum of ten years. Smith v. State, 282 Ga. App. 317, 638 S.E.2d 440 (2006).
Section should be construed with § 40-5-75. - Because O.C.G.A. § 40-5-75 is a recidivist statute and not an habitual traffic offense violator statute, that statute should be construed together with O.C.G.A. § 17-10-7, such that multiple counts of a single indictment are deemed as a single conviction. Bowman v. Griffith, 204 Ga. App. 851, 420 S.E.2d 795 (1992).
Construed with
§ 17-10-2(b). - Because sentencing under O.C.G.A. § 17-10-7(a) is a matter of discretion, O.C.G.A. § 17-10-2(b) requires a felony defendant be given "unmistakable advance warning" that prior convictions will be used in aggravation of punishment. Armstrong v. State, 209 Ga. App. 796, 434 S.E.2d 560 (1993).
Although the state's original notice to the defendant's counsel of the state's intention to admit prior felony convictions as aggravators for sentencing purposes was amended on the day of trial to include new convictions that were not previously listed, the court found that defendant's counsel was timely served with notice of the prior convictions, pursuant to O.C.G.A. §§ 17-10-2(a) and17-10-7(b), because the defendant had time to review the convictions prior to the commencement of the trial; it was accordingly proper that the trial court considered the convictions in determining the appropriate sentence. Howard v. State, 262 Ga. App. 198, 585 S.E.2d 164 (2003).
Construed with § 16-7-1. - Because O.C.G.A. § 16-7-1(b) provides a specific sentencing scheme for defendants convicted more than once of burglary, the general recidivist scheme of O.C.G.A. § 17-10-7 does not apply. Norwood v. State, 249 Ga. App. 507, 548 S.E.2d 478 (2001).
Since the defendant pled guilty to burglary and had a prior felony conviction for forgery in addition to a prior burglary conviction, the defendant was, for sentencing purposes, a three-time felony offender under the general recidivist provisions of O.C.G.A. § 17-10-7(a) rather than a mere two-time burglary offender under the specific recidivist provisions of O.C.G.A. § 16-7-1(b); accordingly, the trial court properly found that the court was required to sentence the defendant as a recidivist under § 17-10-7 to the maximum period of confinement allowed for burglary, which was 20 years. Stephens v. State, 259 Ga. App. 564, 578 S.E.2d 179 (2003).
Because the defendant had multiple prior convictions in addition to burglary convictions, the existence of the prior convictions in addition to those for burglary removed the case from the purview of O.C.G.A. § 16-7-1(b); thus, the defendant was properly sentenced under O.C.G.A. § 17-10-7. Goldberg v. State, 280 Ga. App. 600, 634 S.E.2d 419 (2006), aff'd, 282 Ga. 542, 651 S.E.2d 667 (2007).
When O.C.G.A. §§ 16-7-1(b) and17-10-7(a) are harmonized, the former specific recidivist statute applies when the defendant is a habitual burglar having only prior convictions for burglary, whereas the latter general recidivist statute applies when the defendant is a habitual felon with prior convictions for other crimes; § 17-10-7(e) provides that the general recidivist sentencing statute for habitual felons is supplemental to other recidivist sentencing statutes, such as § 16-7-1(b), and when the Georgia General Assembly enacted § 16-7-1(b), the General Assembly did not provide that O.C.G.A. § 17-10-7 would not be applicable to subsequent convictions for burglary. Goldberg v. State, 282 Ga. 542, 651 S.E.2d 667 (2007), cert. denied, 554 U.S. 905, 128 S. Ct. 2932, 171 L. Ed. 2d 868 (2008).
Construing O.C.G.A. §§ 16-7-1(b) and17-10-7(a) together, the Georgia General Assembly intends that a habitual burglar be given the benefit of the trial court's sentencing discretion, but it further intends that a habitual burglar who is also a habitual felon be subject to the imposition of the longest sentence prescribed for the subsequent offense for which he or she was convicted; because Mikell v. State, 270 Ga. 467 (510 S.E.2d 523) (1999) failed to consider O.C.G.A. § 17-10-7(e) and its effect on other recidivist sentencing provisions, it reached an erroneous result and is therefore overruled. Goldberg v. State, 282 Ga. 542, 651 S.E.2d 667 (2007), cert. denied, 554 U.S. 905, 128 S. Ct. 2932, 171 L. Ed. 2d 868 (2008).
Trial court did not abuse the court's discretion in sentencing a defendant as a recidivist under O.C.G.A. § 17-10-7 because the trial court imposed a modified sentence of 20 years to serve ten upon the defendant; the sentence, as modified, was proper under O.C.G.A. § 16-7-1(b), the specific sentencing scheme applicable to a defendant convicted of burglary having two prior burglary convictions. Williams v. State, 297 Ga. App. 723, 678 S.E.2d 95 (2009).
Construed with § 16-8-14. - Because there was no language within O.C.G.A. § 16-8-14(b)(1)(c) which specifically governed fourth-time shoplifting offenders or that blocked the application of the general recidivist provisions set forth in O.C.G.A. § 17-10-7(c), the trial court's imposition of a recidivist's sentence under § 17-10-7(c), as opposed to the specific provision for shoplifting contained in O.C.G.A. § 16-8-14(b)(1)(C), was upheld. Patrick v. State, 284 Ga. App. 472, 644 S.E.2d 309 (2007).
Defendant was wrongfully sentenced as a recidivist under the state's general recidivist statute, O.C.G.A. § 17-10-7(c), rather than the specific recidivist statute applicable to shoplifting offenses, O.C.G.A. § 16-8-14(b)(1)(C) because the record showed that the defendant had three prior felony shoplifting convictions and one prior misdemeanor shoplifting conviction at the time of trial, but there was no evidence of felony convictions for other crimes. Wester v. State, 294 Ga. App. 263, 668 S.E.2d 862 (2008).
Construction with O.C.G.A. § 16-8-41. - Trial court did not err by imposing the maximum sentence, which was life imprisonment, upon the defendant's conviction for armed robbery as the court lacked the authority to probate or suspend any part of that sentence pursuant to O.C.G.A. § 17-10-7 based on the defendant's prior felony conviction. Bryant v. State, 286 Ga. App. 493, 649 S.E.2d 597 (2007).
Recidivist punishment under O.C.G.A.
§ 16-13-30(d) not precluded by O.C.G.A. § 17-10-7(c). - Imposition of mandatory life sentences as recidivist punishment for convictions under each count of an indictment charging six separate offenses of selling cocaine was not precluded by provisions of the statute placing limitations on the use of prior convictions as the basis for imposing enhanced recidivist punishment. McCoy v. State, 210 Ga. App. 672, 437 S.E.2d 366 (1993).
O.C.G.A.
§ 17-10-7(c) does not apply to capital felonies. - Defendant was convicted of murder and sentenced to life without possibility of parole which was a void sentence as a matter of law, even if the issue was not raised at trial. Funderburk v. State, 276 Ga. 554, 580 S.E.2d 234 (2003).
Recidivist punishment.
- Trial court did not err in sentencing the defendant as a recidivist after considering O.C.G.A. § 17-10-7(a) and (c) together. Reason v. State, 353 Ga. App. 266, 836 S.E.2d 223 (2019).
Life without parole could not be imposed upon conviction of malice murder.
- Because O.C.G.A. § 17-10-7(c) expressly excluded capital felonies from the statute's coverage, and malice murder was a capital felony, a sentence of life imprisonment without parole could not be imposed upon a malice murder conviction. Miller v. State, 283 Ga. 412, 658 S.E.2d 765 (2008).
Inclusion of prior convictions in indictment read to jury is not unconstitutional.
- Procedure under former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7), whereby the defendant's prior convictions are placed in the indictment and read to a jury before guilt or innocence is determined, does not violate any constitutional rights of the defendant. Landers v. Smith, 226 Ga. 274, 174 S.E.2d 427 (1970), but see 1954-56 Op. Att'y Gen. p. 519.
Submission to jury of prior conviction not unconstitutional.- Statute authorized submission to a jury of proof of a prior conviction during the trial and before determination of a defendant's guilt. This procedure is not a violation of the constitutional rights of the accused. Cook v. Smith, 303 F. Supp. 90 (S.D. Ga. 1969), aff'd, 427 F.2d 1172 (5th Cir. 1970).
Trial court properly sentenced a defendant as a recidivist for 20 years imprisonment, to serve 15 years, pursuant to O.C.G.A. § 17-10-7, as a result of the defendant's arson conviction, because the defendant chose to proceed with a jury trial instead of pleading guilty, which would have involved only a three-year sentence as indicated by the trial judge during a pretrial hearing. Moore v. State, 283 Ga. App. 533, 642 S.E.2d 163 (2007).
Statute did not violate the double jeopardy clause of the constitution. Tribble v. State, 168 Ga. 699, 148 S.E. 593 (1929).
No double jeopardy violation.
- Statute did not violate Ga. Const. 1877, Art. I, Sec. I, Para. VIII (see Ga. Const. 1983, Art. I, Sec. I, Para. XVIII). Reid v. State, 49 Ga. App. 429, 176 S.E. 100 (1934).
O.C.G.A. § 17-10-7 does not violate the due process clause of the constitution. Getty v. State, 207 Ga. App. 736, 429 S.E.2d 100 (1993).
Section does not violate right to impartial trial.
- Statute did not violate Ga. Const. 1877, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XI) which guaranteed to one accused of a crime an impartial trial. Tribble v. State, 168 Ga. 699, 148 S.E. 593 (1929).
Statute did not violate Ga. Const. 1877, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XI) which guarantees to one accused of a crime an impartial trial. The general rule is that, in a prosecution for a particular crime, proof and allegations of another crime wholly independent from that for which the defendant is on trial, even though it is a crime of the same nature, are irrelevant and inadmissible; but there are exceptions to this rule. One of these exceptions is when the grade or punishment of the second offense is made by statute different from that of a first offense but the fact of a former conviction and sentence must be charged in the indictment, since a second conviction would affect the grade of the offense or require the imposition of a different punishment. McNabb v. State, 69 Ga. App. 885, 27 S.E.2d 246 (1943).
Statute related only to procedure in the trial of a criminal case and does not affect any vested privilege or constitutional right of the defendant. Kryder v. State, 212 Ga. 272, 91 S.E.2d 612, cert. denied, 352 U.S. 850, 77 S. Ct. 71, 1 L. Ed. 2d 61 (1956).
Prior convictions obtained in violation of indigent defendant's right to appointed counsel cannot be introduced for the purpose of imposing a recidivist sentence or other collateral use in subsequent trials. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).
Gideon v. Wainwright has a retroactive effect if the records of prior convictions obtained in violation of its standards are introduced for collateral use in subsequent trials. Convictions obtained in violation of an indigent's right to counsel, even though obtained prior to Gideon v. Wainwright, cannot be used for the purpose of imposing a recidivist sentence. Blaylock v. Hopper, 233 Ga. 504, 212 S.E.2d 339 (1975).
Purpose of the increased punishment doctrine is to serve as a warning to first offenders so as to afford first offenders an opportunity to reform, and to penalize first offenders upon subsequent infractions for failure to do so. Curtis v. State, 102 Ga. App. 790, 118 S.E.2d 264 (1960).
State's burden of proof.
- When the defendant collaterally attacked the defendant's prior guilty pleas, which the state proposed using to seek defendant's sentencing as a recidivist, the state's burden was to prove the existence of the prior guilty pleas and the defendant's representation by counsel if the pleas involved a felony, and, upon that showing, it was the defendant's burden to present evidence of a constitutional infirmity in the prior plea hearings, and, if the defendant made such a showing, it was then the state's burden to prove the constitutionality of the pleas. Smith v. State, 260 Ga. App. 785, 581 S.E.2d 349 (2003).
State interpretation binding on federal court.
- Georgia Court of Appeals' interpretation of the distinctions between O.C.G.A. § 17-10-7(a) and (b) was binding upon the United States Court of Appeals. McCoy v. Newsome, 953 F.2d 1252 (11th Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283, 119 L. Ed. 2d 208 (1992).
Correction of scrivener's error.
- Because the final disposition form indicated that the defendant was sentenced as a recidivist under one subsection, when the trial court's oral pronouncement indicated the defendant would be sentenced under a different subsection, the scrivener's error was ordered to be corrected. Cooper v. State, 352 Ga. App. 783, 835 S.E.2d 724 (2019).
Construed with U.S. Sentencing Guidelines Manual.
- By committing a new crime, the defendant lost the benefit of first offender status, and the unadjudicated guilt in connection with the prior state offense was properly considered a prior conviction for purposes of sentencing under the U.S. Sentencing Guidelines Manual, which pursuant to U.S. Sentencing Guidelines Manual § 4A1.2, mandated the imposition of criminal history points, even if doing so undermined the purpose of the Georgia's First Offender Act, O.C.G.A. § 42-8-60 et seq. United States v. Barner, 572 F.3d 1239 (11th Cir. 2009).
Informing on punishment.
- There is no requirement in recidivist cases sentenced under O.C.G.A. § 17-10-7 that the court inform the defendant that the custodial portion of any sentence is non-parolable but that the trial court need not impose the maximum custodial sentence. State v. Hayes, 301 Ga. 342, 801 S.E.2d 50 (2017).
When the defendant appeared for a calendar call and made unusual assertions and demands, with no basis in law, to the trial court, the trial court responded appropriately and informed the defendant that the defendant's trial was imminent, and that it was necessary for the defendant to make a decision whether to go to trial or to enter a plea. The court's explanation of the potential maximum sentence was carefully expressed in conditional language, avoiding any positive statement of what sentence might be imposed after a trial or plea; and in informing the defendant of the potential maximum sentence, the trial court was attempting to communicate to the defendant the gravity of the decision the defendant faced as well as the potential consequences of that decision. State v. Hayes, 301 Ga. 342, 801 S.E.2d 50 (2017).
In an aggravated assault case, the defendant was not entitled to a new trial because the trial court did not indicate that the court could not sentence the defendant to 20 years in prison as a recidivist, but, rather, the trial court clearly indicated that the court could sentence the defendant to 20 years in prison; and the colloquy clearly alerted the defendant that the consequences of refusing the state's plea offer could be harsher than the consequences of accepting the plea. Crews v. State, Ga. App. , S.E.2d (Sept. 10, 2020).
Hearing not required to correct final disposition order.
- Trial court did not err in entering the corrected final disposition order when the defendant was sentenced as a recidivist without first conducting a hearing in the defendant's presence because the entry of the final disposition order merely corrected the written sentence to conform to the sentence pronounced orally. Barber v. State, 350 Ga. App. 309, 827 S.E.2d 733 (2019).
Conviction must be final before a conviction can be included in the pre-trial notice given by the state pursuant to O.C.G.A. § 17-10-7(a). Mitchell v. State, 202 Ga. App. 100, 413 S.E.2d 517 (1991); Stephenson v. State, 218 Ga. App. 613, 462 S.E.2d 767 (1995).
Even though the court erred in allowing reference in a recidivist indictment to a conviction which was not yet final, there was no harm since there were two other valid felonies for the court's consideration. Stephenson v. State, 218 Ga. App. 613, 462 S.E.2d 767 (1995).
Although an out-of-time appeal was pending at the time a trial court dismissed a defendant's motion to vacate an allegedly void sentence that was based on prior felony convictions, one of which was subject to a pending "out-of-time" appeal, an appeals court found that the conviction was final within the meaning of O.C.G.A. § 17-10-7 because the defendant was not successful in the appeal; thus, the appeal was no longer pending. Dykes v. State, 272 Ga. App. 203, 612 S.E.2d 53 (2005).
Correction of sentence required.
- Trial court erred in sentencing the defendant by failing to comply with O.C.G.A. § 17-10-7(c) as the trial court was required to impose a 20 year sentence for each burglary count, the longest sentence prescribed in the burglary statute, O.C.G.A. § 16-7-1(b), which the court did not do since the court sentenced the defendant merely to 10 years on Count 1. Barney v. State, 333 Ga. App. 807, 777 S.E.2d 490 (2015).
Trial court did not err in considering the defendant's federal conviction for counterfeiting when the court resentenced the defendant as a recidivist because the provisions of both 18 U.S.C. § 472 and Georgia's statute criminalizing forgery in the second degree would criminalize the conduct to which the defendant pled guilty in federal court. Loveless v. State, 344 Ga. App. 716, 812 S.E.2d 42 (2018).
Exception to finality of conviction rule.
- In an escape case, the defendant's prior aggravated assault, robbery, battery, and theft convictions were available to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(a) because any of the defendant's armed robbery convictions, which were pending at the time the defendant escaped, would support the defendant's being sentenced as a convicted felon under O.C.G.A. § 16-10-52(b). Allen v. State, 292 Ga. App. 133, 663 S.E.2d 370 (2008), aff'd, 286 Ga. 273, 687 S.E.2d 417 (2009).
Conviction which was on appeal is not a conviction within the meaning of this section. The conviction must be final before the conviction can be included in an indictment. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787 (1969).
Section inapplicable to prior conviction in another state.
- This section was not applicable in a case when the defendant was convicted of a crime punishable by confinement in a penal institution, but when the defendant had previously been convicted in another state of an offense and sentenced to confinement in a penal institution of that state. Lowe v. State, 179 Ga. 742, 177 S.E. 240 (1934), answer conformed to, 50 Ga. App. 369, 178 S.E. 203 (1935).
It must be presumed that the General Assembly used the words employed in their ordinary, everyday, common-sense meaning, and that in referring to the previous conviction the General Assembly had no reference to convictions in courts of states beyond the jurisdiction of this state. The courts of this state do not take judicial cognizance of the laws of these foreign jurisdictions, and therefore there cannot be attributed to the General Assembly an intention to give equal dignity to proof of a conviction in another jurisdiction to that which properly inheres in those of the state, when it may be that in many of these states important rules of procedure, in criminal trials, are entirely different from those which the General Assembly has adopted. Lowe v. State, 179 Ga. 742, 177 S.E. 240 (1934), answer conformed to, 50 Ga. App. 369, 178 S.E. 203 (1935).
Required proof of felony status to use foreign conviction.
- Before a defendant can be sentenced under O.C.G.A. § 17-10-7(a) based upon a foreign conviction, the state was required to prove that the conviction was for conduct that would also constitute a felony in Georgia; since it was possible that the defendant was convicted under Tenn. Code Ann. § 39-13-102(b), and this conduct may not have constituted a felony in Georgia, the state failed to sustain the state's burden under § 17-10-7(a), and the defendant's recidivist sentence was vacated. Lewis v. State, 263 Ga. App. 98, 587 S.E.2d 245 (2003), overruled on other grounds by Washington v. State, 310 Ga. App. 775, 714 S.E.2d 364 (2011).
Prior offense qualified even though mistakenly treated as misdemeanor.
- Prior offense of possession of tools for the commission of crime was "punishable" for confinement by up to five years, and was therefore a felony, qualifying so as to invoke the recidivist statute, even though the court had mistakenly sentenced defendant for a misdemeanor and probated confinement. State v. Temple, 189 Ga. App. 284, 375 S.E.2d 300 (1988).
Improper consideration of prior arrests.
- Although prior arrests are not properly considered in imposing recidivist punishment, there is a presumption that a trial judge does not consider improper matters in imposing sentences. Jenkins v. State, 235 Ga. App. 547, 510 S.E.2d 87 (1998).
This section was not applicable in capital cases; the statute was applicable only in felony cases that are not capital because the statute requires that the recidivist shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which the defendant stands convicted. Clemmons v. State, 233 Ga. 187, 210 S.E.2d 657 (1974).
Indictment not under section for capital crime after March 28, 1973.
- If a capital crime occurred after March 28, 1973, the effective date of former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30), the accused should not be indicted under former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7). Clemmons v. State, 233 Ga. 187, 210 S.E.2d 657 (1974).
Applicability when capital and noncapital counts combined.
- When capital felonies and noncapital felonies are included in separate counts of an indictment, the fact that this section was not applicable to the capital felony count in no way affects its applicability to the remaining counts. Thornton v. State, 144 Ga. App. 595, 241 S.E.2d 478 (1978).
Lack of any allegation as to defendant's recidivism in an indictment would be no impediment to the imposition of recidivist sentences pursuant to O.C.G.A. § 17-10-7. Mitchell v. State, 202 Ga. App. 100, 413 S.E.2d 517 (1991); State v. Willis, 218 Ga. App. 402, 461 S.E.2d 576 (1995).
Defendant properly sentenced as recidivist.
- Defendant's challenge to the recidivist sentences failed because the certified copy of the defendant's prior burglary conviction showed that the defendant was sentenced to a term of probation to be served at a halfway house; it did not indicate, as the defendant claimed, that the sentence was entered pursuant to the First Offender Act, O.C.G.A. § 42-8-60. Robbins v. State, 326 Ga. App. 812, 757 S.E.2d 452 (2014).
Trial court did not err in sentencing the defendant as a four-time recidivist because the defendant waived any challenge to the validity of the prior felony conviction for financial transaction credit card fraud as the defendant never challenged the validity of the defendant's prior felony conviction for financial transaction credit card fraud at the sentencing hearing, in the defendant's motion for new trial as twice amended, or in the hearing on the defendant's motion for new trial; and a claim that one of the predicate felonies used in aggravation of punishment was invalid did not raise a cognizable claim that the recidivist sentence was void. Barber v. State, 350 Ga. App. 309, 827 S.E.2d 733 (2019).
Failure to object to procedural irregularity.
- Since certified copies of the plea revealed that the defendant was represented by counsel and signed defendant's own name to the plea documents, the state was entitled to a presumption of regularity and the burden shifted to the defendant to show an infringement of the defendant's rights or a procedural irregularity in the plea; since the defendant failed to do so, the trial court properly sentenced the defendant as a recidivist under O.C.G.A. § 17-10-7(a). Reedman v. State, 265 Ga. App. 162, 593 S.E.2d 46 (2003).
Failure to indict as recidivist.
- Trial court could impose recidivist punishment even though the defendant had not been indicted under O.C.G.A. § 17-10-7. Jefferson v. State, 205 Ga. App. 687, 423 S.E.2d 425 (1992).
Trial court could not sentence defendant as recidivist after already serving prior oral sentence.
- Trial court improperly increased the defendant's sentence by imposing a recidivist sentence under O.C.G.A. § 17-10-7, making the defendant ineligible for parole, when the defendant had already begun to serve the trial court's prior oral sentence; although the length of the sentence was not changed, the recidivist designation constituted added punishment. Caldwell v. State, 355 Ga. App. 608, 845 S.E.2d 345 (2020).
Defendant was properly sentenced as a recidivist under O.C.G.A. § 17-10-7 as O.C.G.A. § 16-7-1(b) was inapplicable since the defendant was convicted of attempted burglary, which was subject to sentencing under O.C.G.A. § 16-4-6; further, the defendant had been convicted of two other burglaries and two other felonies so the defendant was a four-time felony offender subject to the general recidivist sentencing scheme in § 17-10-7. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219 (2005).
Trial court did not err in sentencing the defendant as a recidivist as there was no proof presented that the defendant had begun to serve the non-recidivist sentence immediately after the sentence was pronounced, but before the judge set the sentence aside, and despite a claim that the state failed to provide certified copies of the earlier convictions prior to trial. Ivey v. State, 278 Ga. App. 463, 629 S.E.2d 127 (2006).
Trial court properly dismissed the defendant's petition to correct a void sentence, which challenged the imposition of a 60-year recidivist sentence imposed against the defendant for burglary and arson, in violation of O.C.G.A. §§ 16-7-1(a) and16-7-60(c), respectively, as the state gave notice to the state's intent to have the defendant sentenced as a recidivist under O.C.G.A. § 17-10-7(a) and (c) and no abuse of the trial court's discretion was shown. Marshall v. State, 294 Ga. App. 282, 668 S.E.2d 892 (2008).
Trial court did not abuse the court's discretion in sentencing the defendant as a recidivist under O.C.G.A. § 17-10-7(a) and (c) because the defendant had been convicted of at least three prior felonies and, thus, the defendant was required to be sentenced to the longest period of time prescribed for the punishment of the subsequent armed robbery offense and was required to serve the maximum time provided in the sentence of the trial court based upon the defendant's conviction of armed robbery and would not be eligible for parole until the maximum sentence had been served; because life imprisonment was an authorized punishment for a conviction of armed robbery under O.C.G.A. § 16-8-41(b), and because the defendant was sentenced as a recidivist under § 17-10-7(a) and (c), the trial court lacked the discretion to sentence the defendant to a lesser sentence, and it was presumed that the trial court exercised the court's discretion in sentencing the defendant to a period of incarceration, rather than probation, when no evidence to the contrary appeared. Lester v. State, 309 Ga. App. 1, 710 S.E.2d 161 (2011).
Trial court did not err by sentencing the defendant as a recidivist because under O.C.G.A. § 17-10-7, the trial court was required to sentence the defendant to life imprisonment without eligibility for parole since the state introduced certified records of the defendant's six prior felony convictions; O.C.G.A. § 17-10-7(a) and (c) must be read together. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).
Trial court did not err by sentencing the defendant to life without parole as a recidivist because although the trial court failed to mention O.C.G.A. § 17-10-7 when the court orally pronounced sentence, but included § 17-10-7 in the written final disposition, the defendant's sentence did not change; the defendant was still sentenced to life in prison without parole. Smith v. State, 312 Ga. App. 174, 718 S.E.2d 43 (2011).
Trial court did not err in sentencing the defendant as a recidivist under O.C.G.A. § 17-10-7 because the notice of the state's intent to seek recidivist sentencing was served on defense counsel on the first day of trial prior to the jury being sworn, and certified copies of the convictions were admitted without objection; therefore, any defects or untimeliness in the notice under O.C.G.A. § 17-16-4(a)(5) were waived. Ross v. State, 313 Ga. App. 695, 722 S.E.2d 411 (2012).
Trial court did not err in sentencing the defendant to life without parole as the state served the defendant with notice of the state's intent to seek recidivist punishment and the state introduced evidence of the defendant's three prior felony convictions. Wynn v. State, 332 Ga. App. 429, 773 S.E.2d 393 (2015).
Trial court did not err in sentencing the defendant under the general recidivist statute, which applied when the defendant was a habitual felon with prior convictions for crimes other than just burglary, rather than the specific recidivist statute, which applied only to prior convictions for burglary, because the defendant's federal conviction for conspiracy to transport stolen goods did not constitute a burglary conviction; thus, the defendant's conviction in the current case represented not only the defendant's third burglary conviction but also the defendant's fourth felony conviction, and the defendant fell squarely within the ambit of the general recidivist statute. Nordahl v. State, 344 Ga. App. 686, 811 S.E.2d 465 (2018), aff'd, 306 Ga. 15, 829 S.E.2d 99 (2019).
Trial court did not err in sentencing the defendant as a recidivist based on the defendant's New York burglary conviction, New Jersey burglary conviction, and federal conviction for conspiracy to transport stolen goods because the state met the state's statutory burden of proving that the defendant was convicted of conduct which would be considered felonious under the laws of Georgia. Nordahl v. State, 344 Ga. App. 686, 811 S.E.2d 465 (2018), aff'd, 306 Ga. 15, 829 S.E.2d 99 (2019).
Trial court did not err in imposing maximum and consecutive sentences on the defendant for the burglary and theft by taking convictions as the defendant's prior convictions for three or more felonies qualified the defendant to be sentenced as a recidivist, requiring the defendant to be sentenced to the maximum time allowed; the sentences were within the statutory ranges; and the trial court had the authority to require that the sentences run consecutively. Hamlett v. State, 350 Ga. App. 93, 828 S.E.2d 132 (2019), cert. denied, No. S19C1274, 2019 Ga. LEXIS 860 (Ga. 2019), cert. denied, No. A19C1275, 2019 Ga. LEXIS 890 (Ga. 2019).
In a burglary action, the trial court properly sentenced defendant to 25 years, the maximum sentence set forth in O.C.G.A. § 16-7-1(b) for a person being prosecuted for a third or subsequent burglary because, as a habitual felon, the recidivist provisions applied rather than the specific recidivist provisions in the burglary statute. The express terms of O.C.G.A. § 17-10-7 (a) allow a trial court to use the court's discretion to 'suspend the maximum sentence prescribed for the offense. and since the defendant is a habitual felon and not merely a habitual burglar, the trial court was not constrained by the language in the recidivist provisions of the burglary statute barring the suspension of sentences. State v. Stanford, Ga. App. , S.E.2d (Sept. 9, 2020).
Recidivist sentencing appropriate when offenses not consolidated.
- Trial court did not err either in sentencing the defendant as a recidivist under O.C.G.A. § 17-10-7 because the record showed that each of the offenses which resulted in the convictions at issue were committed at different times, each was indicted separately by different grand juries, and the trial court entered separate sentencing orders in each of the three cases; the offenses were not considered consolidated under § 17-10-7 even after being entered on the same day and ordered to run concurrently. Becoats v. State, 318 Ga. App. 262, 733 S.E.2d 795 (2012).
Recidivist sentence was erroneous.
- Trial court erred by sentencing the defendant as a recidivist because the defendant's one prior conviction could not serve as the basis for both the failure of a registered sex offender to report a change in residence count and the recidivist sentence. Pardon v. State, 322 Ga. App. 393, 745 S.E.2d 658 (2013).
Pursuant to O.C.G.A. § 17-10-7(b.1), a defendant who has been convicted previously of violating either subsections (a), (i)(1), or (j) of O.C.G.A. § 16-13-30 may not be sentenced as a recidivist for a second or any subsequent conviction for violating any of those code sections even if the defendant had never been convicted previously of violating the exact subsection for which the defendant is being sentenced. Mathis v. State, 336 Ga. App. 257, 784 S.E.2d 98 (2016).
Defendant could not be sentenced for possession of cocaine as a recidivist under O.C.G.A. § 17-10-7(c) because one of the three prior felony convictions used in aggravation was also a conviction under O.C.G.A. § 16-13-30(a). Johnson v. State, 335 Ga. App. 796, 783 S.E.2d 156 (2016).
Trial court erred by sentencing the defendant as a recidivist because the defendant had not been convicted of a felony prior to the commission of the rape. Cook v. State, 338 Ga. App. 489, 790 S.E.2d 283 (2016).
Nolo contendere plea could not be used as proof of prior conviction under recidivist statute.
- Trial court erred in considering the defendant's nolo contendere plea as proof of a prior conviction under the recidivist statute because the plain language of O.C.G.A. §§ 17-7-95 and17-10-7(c) indicated that such a plea could not be used against the defendant in sentencing the defendant as a recidivist. Miller v. State, 353 Ga. App. 518, 838 S.E.2d 602 (2020).
Counsel was effective in advising on recidivism.
- Defendant failed to prove that the defendant was rendered ineffective assistance of counsel based on the defendant's allegation that trial counsel failed to inform the defendant that the state intended to prosecute the defendant as a recidivist as, while the record reflected that trial counsel was confused about the issue and that trial counsel did not know the state intended to prosecute the defendant as a recidivist, trial counsel testified that there was always a possibility of a life sentence for rape and that trial counsel discussed that possibility with the defendant. Mora v. State, 295 Ga. App. 641, 673 S.E.2d 23 (2009).
Trial counsel was not ineffective for failing to inform the defendant of the consequences of recidivist sentencing and of rejecting the state's last plea offer because, while there could be an inference from the evidence that the defendant would have accepted the state's final plea offer, that did not mean that the trial court was required to do so; and trial counsel testified that, on the day of trial, counsel again discussed with the defendant the possibility of a 20-year, no-parole recidivist sentence if the defendant were convicted, and that counsel recommended that the defendant take the state's plea offer. Crews v. State, Ga. App. , S.E.2d (Sept. 10, 2020).
Counsel's failure to inform defendant of the consequences of recidivist punishment and of proceeding to trial rather than accepting a guilty plea cannot rise to the level of constitutionally ineffective assistance of counsel. Taylor v. State, 239 Ga. App. 329, 521 S.E.2d 375 (1999).
Defendant's trial counsel did not render ineffective assistance by failing to inform the defendant that the defendant would receive a mandatory recidivist sentence of life without parole if the defendant rejected a plea offer; prejudice could only be shown by some indication that, when the defendant rejected the plea, the defendant was amenable to the plea offer. Defendant's rejection of the plea was part of an effort to stall the trial on the hope that the victim, who was the state's key witness, would die and would be unavailable for trial. Carson v. State, 264 Ga. App. 763, 592 S.E.2d 161 (2003).
Defendant was not entitled to relief under 28 U.S.C. § 2254 because the defendant failed to show that the defendant was prejudiced by counsel's failure to inform the defendant that the defendant faced a mandatory life sentence under O.C.G.A. § 17-10-7 since the evidence showed that the defendant likely would not have accepted a plea bargain that included a 15 to 25-year sentence because the victim's whereabouts were unknown, and the defendant felt that the aggravated assault and armed robbery case against defendant was weak without the victim's testimony. Carson v. Thompson, F.3d (11th Cir. Apr. 27, 2007)(Unpublished).
Trial court did not err in denying the defendant's motion for new trial on the grounds of ineffective assistance of counsel with regard to the defendant's drug-related convictions based on defense counsel failing to advise the defendant that the state intended to prosecute defendant as a recidivist since the defendant did not testify that the defendant would have accepted a plea offer had the defendant known that the defendant was facing the prospect of being sentenced as a recidivist; thus, the defendant failed to show that counsel's alleged deficiency affected the end result of the case. Furthermore, the defendant did not show in the record that the state made or was amenable to any plea negotiations. Heard v. State, 291 Ga. App. 550, 662 S.E.2d 310 (2008).
Trial counsel's performance was constitutionally deficient because counsel did not advise the defendant during plea negotiations that the defendant faced a mandatory sentence as a recidivist and would be ineligible for parole if the defendant was convicted at trial. Because counsel's performance was deficient, and the defendant made a showing that the defendant was amenable to the state's plea offer of 15 years with six to serve, the case was remanded to the trial court to make the necessary factual determinations concerning the remaining elements of the prejudice analysis regarding whether the prosecution would have withdrawn the offer and whether the trial court would have accepted the plea. Daniel v. State, 342 Ga. App. 448, 803 S.E.2d 603 (2017).
Ineffective assistance for failing to challenge sufficiency of notice.
- Defendant failed to show trial counsel's performance was deficient for failing to challenge the sufficiency of the state's notice of intent to seek punishment as a recidivist because there was no evidence in the record that the state failed to provide a copy of the criminal history report, nor was there any evidence that the defendant and counsel were unaware of the specific felony convictions listed in the criminal history record. Williams v. State, 326 Ga. App. 784, 757 S.E.2d 448 (2014).
No ineffective assistance due to failure to challenge sentence.
- Even if counsel was professionally deficient in failing to challenge the defendant's sentences for armed robberies, burglary, and aggravated assault based on post-King cases, the defendant could not show Strickland prejudice as the defendant's sentences under O.C.G.A. § 17-10-7(a) were legally proper as a prior felony conviction was not an element of those crimes. Hillman v. Johnson, 297 Ga. 609, 774 S.E.2d 615 (2015).
Effect of counsel's inaccurate advice.
- Inmate, charged with kidnapping, was facing the possibility of 20 years prison time, except that the sentence could have been enhanced under O.C.G.A. § 17-10-7(b)(2) to life without parole; thus, the inmate accepted the advice of counsel to plead guilty to avoid a second trial in another county since the kidnapping offense occurred in two counties. However, the inmate was granted habeas relief as the advice of counsel was incorrect as a second trial was prohibited under double jeopardy principles. Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007).
Defendant was properly allowed to withdraw a guilty plea to armed robbery, and the probation revocation that this plea triggered was properly reversed as counsel had been ineffective in misadvising the defendant that the defendant would be eligible for parole if a guilty plea was entered. Instead, under O.C.G.A. § 17-10-7(b)(2), the defendant's second conviction for a serious violent felony mandated a sentence of life imprisonment without the possibility of parole. Tillman v. Gee, 284 Ga. 416, 667 S.E.2d 600 (2008).
No ineffective assistance of counsel for failure to object to admission of prior convictions.
- With regard to the defendant's conviction for distributing cocaine, the defendant failed to establish that the defendant was rendered ineffective assistance of counsel based on trial counsel failing to adequately challenge the admission of prior convictions at the sentencing hearing as the evidence established that the state gave the defendant pre-trial notice that the state intended to introduce the convictions at sentencing. Therefore, any objection in that regard would have been futile. Beck v. State, 292 Ga. App. 472, 665 S.E.2d 701 (2008), cert. denied, No. S08C1863, 2008 Ga. LEXIS 922 (Ga. 2008).
Trial court did not abuse the court's discretion by denying the defendant's motion to withdraw the guilty plea because the defendant did not identify any specific prior guilty pleas that counsel should have objected to as improper considerations for recidivist sentencing.
Effect of recidivism on voluntari- ness of guilty plea.
- Defendant was not entitled to withdraw the defendant's guilty pleas on the ground that trial counsel had failed to inform the defendant that the defendant would be ineligible for parole since the record revealed that trial counsel had informed the defendant of the ramifications of a guilty plea and that the defendant qualified as a recidivist, and the defendant had stated in open court that the defendant was entering the defendant's pleas freely and voluntarily and that the defendant understood, as a recidivist, the defendant would serve the entire sentence in prison. Thomas v. State, 234 Ga. App. 652, 507 S.E.2d 523 (1998).
Because the defendant failed to show sufficient evidence of a psychological impairment, due in part by ceasing to take needed medication, sleep deprivation, racing thoughts or other psychological turmoil, or that trial counsel was ineffective as to counsel's advice regarding sentencing as a recidivist under O.C.G.A. § 17-10-7, the appeals court agreed that a guilty plea was intelligently and voluntarily entered; thus, the trial court properly denied a motion to withdraw the plea. Frost v. State, 286 Ga. App. 694, 649 S.E.2d 878 (2007).
State met the state's burden of showing that the defendant's plea was freely and voluntarily entered, that the defendant understood the nature of the charges, and that the defendant was aware of the consequences of a guilty plea because the possibility of a nonrecidivist sentence never was presented to or considered by the court; the defendant's response showed that the defendant understood that a nonrecidivist sentence was not a possibility; and trial counsel testified that the defendant and counsel had discussed what the term recidivism meant, and that counsel had explained to the defendant the difference between recidivist and nonrecidivist sentencing several times. Ranger v. State, 330 Ga. App. 578, 768 S.E.2d 768 (2015).
After entering a non-negotiated guilty plea to influencing a witness and being sentenced to the maximum sentence of ten years, with the possibility of parole under O.C.G.A. § 17-10-7(a), the defendant's motion to withdraw the plea was properly denied because the defendant failed to show that counsel was ineffective in failing to contact the defendant or explain the plea. Coleman v. State, 337 Ga. App. 732, 788 S.E.2d 826 (2016).
Split sentences.
- Trial court's denial of the defendant's motion to vacate sentences for child molestation, aggravated child molestation, and incest was upheld because to apply the split-sentencing provisions to pre-2006 law would require the court to re-write applicable statutes to make them subject to statutory provisions that did not even exist at the time the statutes were enacted, which the court was prohibited to do without contravening the plain meaning of the statutory text. Bryson v. State, 350 Ga. App. 206, 828 S.E.2d 450 (2019).
Appeals.
- Claims that the defendant's sentence under the recidivist statute was invalid were waived as the defendant did not raise the claims of error regarding the defendant's sentence when the defendant appealed the defendant's conviction; thus, having already invoked the appellate process, the defendant was not entitled to raise those claims when the defendant appealed a second time. Taylor v. State, 261 Ga. App. 248, 582 S.E.2d 209 (2003).
Because the defendant's argument that the trial court erred in sentencing the defendant under the recidivist statute, O.C.G.A. § 17-10-7, was not raised before the trial court, the defendant waived the right to argue it on appeal. Boyd v. State, 302 Ga. App. 455, 691 S.E.2d 325 (2010).
Duty to charge as to section.
- It was the duty of the court to charge the jury relative to the provisions of this section in order that the jury's findings with respect to such former offense and sentence might be given effect in the punishment imposed. Winston v. State, 186 Ga. 573, 198 S.E. 667 (1938).
Since former conviction is jury question.
- When a former offense and conviction are alleged in the indictment, it is for the jury and not for the court to determine the truth of such allegation. Winston v. State, 186 Ga. 573, 198 S.E. 667 (1938).
Error in recidivist sentence was benefit to defendant.
- Defendant cannot complain that the defendant received one year less than the law required since the judge pronounced a 14-year sentence for burglary and a consecutive 5-year sentence for recidivism, yet the court entered a single 19-year sentence. Murphy v. State, 203 Ga. App. 152, 416 S.E.2d 376 (1992).
Since the defendant was sentenced to a shorter term of confinement than that required by O.C.G.A. § 17-10-7, the error was a benefit and the trial court did not err in denying the defendant's motion to correct an illegal sentence. O'Neal v. State, 238 Ga. App. 446, 519 S.E.2d 244 (1999), cert. denied, 529 U.S. 1039, 120 S. Ct. 1535, 146 L. Ed. 2d 349 (2000).
Discretion in imposition of sentence.
- Trial court's failure to exercise the court's discretion in sentencing the defendant to the maximum was error requiring remand for resentencing. Bradshaw v. State, 237 Ga. App. 627, 516 S.E.2d 333 (1999).
When the defendant was convicted of possession of cocaine with the intent to distribute, the trial court did not err in concluding that the court lacked the discretion to suspend or probate any portion of the defendant's mandatory ten-year minimum sentence because, at sentencing, the state presented evidence that the defendant had three prior felony convictions, including one for possession of cocaine with the intent to distribute; in such cases, the court of appeals had held that O.C.G.A. § 17-10-7(c) required the trial court to impose a mandatory minimum ten-year sentence, no part of which could be probated. Thomas v. State, 321 Ga. App. 214, 741 S.E.2d 298 (2013).
Resentencing required.
- Although the trial court was required to impose the maximum penalty, the court had discretion to probate or suspend the penalty, and because the court's remarks did not indicate a recognition of this discretion, the court of appeals was required to vacate the sentence and remand the case for resentencing. Minter v. State, 245 Ga. App. 327, 537 S.E.2d 769 (2000), overruled on other grounds, Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009).
Ten year sentence for shoplifting inappropriate.
- Trial court erred in failing to exercise the sentencing discretion provided under O.C.G.A. § 16-8-14 for the shoplifting conviction because the court erroneously concluded that the court was required to impose the maximum sentence of ten years with no eligibility for parole because nothing in the specific sentencing scheme in § 16-8-14(b)(1)(C) permitted application of conflicting provisions in the general recidivist sentencing scheme in O.C.G.A. § 17-10-7(a); instead, the specific scheme controlled. Williams v. State, 261 Ga. App. 176, 582 S.E.2d 141 (2003).
Remand for resentencing required.
- Because the trial court retained discretion to sentence a defendant within the minimum and maximum sentence provided for the crime charged, the trial judge erred in stating otherwise when sentencing the defendant to the maximum time to serve for each convicted count, requiring a remand for resentencing. Johnson v. State, 285 Ga. App. 590, 646 S.E.2d 760 (2007).
Even if a trial court improperly constrained the court's own discretion in applying the recidivist statute, any procedural error did not void a defendant's resulting sentence of life imprisonment for armed robbery; thus, the defendant's only remedy was to apply for a writ of habeas corpus. Brown v. State, 295 Ga. App. 66, 670 S.E.2d 867 (2008).
Trial court erred in sentencing the defendant as a recidivist to ten years imprisonment under O.C.G.A. § 17-10-7 for theft by shoplifting in violation of O.C.G.A. § 16-8-14 because the defendant demonstrated that the trial court did not exercise the court's discretion to consider probating or suspending a portion of the sentence after the defendant served one year pursuant to O.C.G.A. § 16-8-14(b)(1)(C). Holland v. State, 310 Ga. App. 623, 714 S.E.2d 126 (2011).
Although a defendant's trial counsel incorrectly stated that the trial court was required to sentence the defendant to ten years to serve for receiving stolen property, given the defendant's three prior felony convictions, the trial court was presumed to have exercised the court's discretion in imposing the sentence. Reese v. State, 313 Ga. App. 746, 722 S.E.2d 441 (2012).
Trial court's failure to exercise the court's discretion as to the three misdemeanor crimes, instead stating that the court was imposing the maximum sentence on each count as required by the recidivism statute, was error that was not harmless as such sentences were only required for subsequent felonies and, thus, remand was necessary. Hobbs v. State, 334 Ga. App. 241, 779 S.E.2d 15 (2015).
Court must impose maximum sentence.
- Once the jury finds the defendant to be a multiple offender, the court is required to impose the maximum sentence authorized by law for the offense of which the defendant had been found guilty. Hammond v. State, 139 Ga. App. 820, 229 S.E.2d 685 (1976).
Life without parole was required sentence.
- Defendant was required to be sentenced to life without parole for the conviction of murder in light of the defendant's prior kidnapping conviction, and it was not required that the state had been seeking the death penalty for that sentence to be imposed. Kimbrough v. State, 300 Ga. 516, 796 S.E.2d 694 (2017).
Life sentence for murder upheld.
- In the defendant's trial for murder, the trial court properly exercised the court's discretion to sentence the defendant to life in prison with the possibility of parole under O.C.G.A. §§ 16-5-1(e)(1),17-9-2, and17-10-7(a), rather than life without the possibility of parole, because parole did not extend the duration of the sentence. Blackwell v. State, 302 Ga. 820, 809 S.E.2d 727 (2018).
Life without parole appropriate sentence for multiple felon.
- Trial court did not err in denying the defendant's motion to correct a void sentence as the sentence of life imprisonment without parole imposed by the trial court was supported by the defendant's three prior felony convictions, and there was no merit to the defendant's claim that the law did not allow for the life sentence because the state failed to follow the procedures required for a death penalty case. Bihlear v. State, 341 Ga. App. 364, 801 S.E.2d 68 (2017).
No parole for fourth offender recidivist.
- Since certified records of at least five noticed prior felony convictions were introduced by the state, sentence of the defendant to life imprisonment without eligibility for parole was required under the applicable version of O.C.G.A. § 17-10-7 which removed the possibility of parole in regard to the sentence of fourth offender recidivists. State v. Willis, 218 Ga. App. 402, 461 S.E.2d 576 (1995).
In discussing the proposed sentence on a guilty plea, the court did not commit reversible error by informing the defendant that, as a recidivist, the defendant would get the maximum punishment since the court had inquired and the defendant had offered no evidence in mitigation. Quarterman v. State, 223 Ga. App. 566, 479 S.E.2d 397 (1996).
Trial court was required to sentence the defendant to life imprisonment because the defendant had previously been convicted of a felony under Georgia law and sentenced to confinement in a penal institution. Webb v. State, 251 Ga. App. 414, 554 S.E.2d 563 (2001).
Trial court correctly understood that under O.C.G.A. § 17-10-7 the court was required to impose the maximum sentence for each current felony conviction but had the discretion to probate or suspend part of that sentence (which the court chose not to do). Whether the offense for which the defendant currently stood convicted was defendant's second, third, fourth or fourteenth, the only sentence imposable for such conviction was the maximum time prescribed by the statute for that offense. Buckner v. State, 253 Ga. App. 294, 558 S.E.2d 823 (2002).
Defendant's sentence to life imprisonment without parole for the defendant's conviction of aggravated child molestation was not illegal as the sentence was the defendant's second "serious violent felony" pursuant to O.C.G.A. § 17-10-6.1(a)(5), and, accordingly, the trial court had no discretion but to impose that sentence pursuant to O.C.G.A. § 17-10-7(b)(2); it was noted that the defendant's motion to vacate, modify, correct, or set aside the sentence was made four and a half years after the defendant's sentencing, at which point the trial court no longer had jurisdiction because it was past the court's term. Gosnell v. State, 262 Ga. App. 641, 586 S.E.2d 350 (2003).
Trial court did not have the power to sentence the defendant who was convicted of armed robbery after the defendant was already convicted of committing other felonies to probation, or to suspend any part of the defendant's sentence, and because life in prison was the maximum penalty for armed robbery, the trial court properly sentenced the defendant to life in prison without parole. Thompson v. State, 265 Ga. App. 696, 595 S.E.2d 377 (2004).
Defendant's 20-year sentences without parole for burglary and aggravated assault were not improper merely because the defendant was eligible for parole on the murder conviction after 14 years pursuant to O.C.G.A. § 17-10-6.1(c)(1); O.C.G.A. § 17-10-7(a) and (c) mandated the maximum sentences for burglary and aggravated assault without parole and did not require probation or suspension of any part. Clark v. State, 279 Ga. 243, 611 S.E.2d 38 (2005).
Trial court did not err at the defendant's resentencing hearing in resentencing the defendant to 20 years, after the court had originally sentenced the defendant to two concurrent 12-year terms for aggravated assault convictions because, as a recidivist, the defendant should have been given the maximum sentence of 20 years as required by O.C.G.A. § 17-10-7(c). Hill v. State, 272 Ga. App. 280, 612 S.E.2d 92 (2005).
O.C.G.A. § 17-10-6.1(a) defined both rape and aggravated sodomy as "serious violent felonies"; thus, in light of a prior aggravated sodomy conviction, a trial court would have been required to sentence the defendant to life without parole for subsequent violent rape felonies under the sentencing statutes either as the statutes existed at the time of the rapes, 1996, or at the time of the defendant's trial, 1998. Thompson v. State, 279 Ga. App. 657, 632 S.E.2d 407 (2006).
Trial court properly vacated a consent order modifying the defendant's original sentence as such was based upon a mistake of law induced by the defendant personally, and hence, void; moreover, because the defendant was sentenced as a recidivist, the trial court was required to impose a sentence pursuant to O.C.G.A. § 17-10-7(a). Sosebee v. State, 282 Ga. App. 905, 640 S.E.2d 379 (2006).
Because the defendant was a three-time recidivist and because the maximum sentence for aggravated sodomy was life in prison, the trial court correctly imposed sentence against the defendant to serve life in prison without the possibility of parole. Bharadia v. State, 282 Ga. App. 556, 639 S.E.2d 545 (2006), cert. denied, No. S07C0522, 2007 Ga. LEXIS 222 (Ga. 2007).
Failure to specify sentencing provision.
- Since the trial court, in erroneously finding that the defendant had three prior convictions rather than only two, erred only to the extent that the court did not specify that the sentences were being imposed pursuant to subsection (a) rather than subsection (b) of O.C.G.A. § 17-10-7, the case was remanded with direction to amend the order sentencing the defendant to show that the defendant was not found to be a fourth offender under § 17-10-7(b). Mitchell v. State, 202 Ga. App. 100, 413 S.E.2d 517 (1991).
Because the record reflected that the defendant's five convictions were not consolidated for trial, and the trial court necessarily was sentencing the defendant under O.C.G.A. § 17-10-7(c), which applied to defendants having three or more prior felony convictions, the defendant was sentenced correctly; while it would have been the better practice for the trial court to plainly indicate on the court's final disposition which subsection of the repeat offender statute applied to the defendant's recidivist sentence, the failure to do so did not amount to reversible error. Harper v. State, 270 Ga. App. 376, 606 S.E.2d 599 (2004).
Judicial discretion.
- Although the defendant would be required under O.C.G.A. § 17-10-7(c) to serve the maximum time provided in the sentence of the judge, the sentence of the judge was by no means fixed; because the trial judge mistakenly believed that a life sentence was mandatory, the judge failed to exercise judicial discretion. Blevins v. State, 270 Ga. App. 388, 606 S.E.2d 624 (2004).
Whether offense is defendant's second, third, fourth, or fourteenth, the only sentence imposable for such conviction is the maximum time prescribed by the statute for that offense. Hammond v. State, 139 Ga. App. 820, 229 S.E.2d 685 (1976).
State introduced three prior felony convictions at the defendant's sentencing on a fourth felony conviction for possession of cocaine and, thus, the trial court was authorized to sentence the defendant under the recidivist statute, O.C.G.A. § 17-10-7, to any sentence permitted under that statute for a fourth-time felon. Taylor v. State, 261 Ga. App. 248, 582 S.E.2d 209 (2003).
Defendant's third prior felony conviction did not count for purposes of O.C.G.A. § 17-10-7(c), inasmuch as that conviction was entered only after the defendant committed the crimes of which the defendant was convicted. The terms of § 17-10-7(c) plainly forbid parole only when a defendant, "after having been convicted" of three felonies, committed another felony. Barber v. State, 316 Ga. App. 701, 730 S.E.2d 176 (2012).
Effect of maximum punishment requirement for second offense.
- Maximum penalty might be imposed on a first conviction. The requirement of this section, that it must be imposed in the event of a second conviction, does not alter the character of the original offense or provide for a different punishment. McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903).
Sentenced for a second offense of cocaine possession.
- Defendant's previous conviction for cocaine possession with intent to distribute constituted a previous conviction for cocaine possession that triggered the mandatory 30-year sentencing for a second simple possession offense under O.C.G.A. § 16-30-30(c). Smiley v. State, 241 Ga. App. 712, 527 S.E.2d 585 (2000).
If prior felony punished as for misdemeanor, maximum punishment rule inapplicable.
- If evidence showed that although the defendant was convicted of a reducible felony, the defendant was only sentenced to misdemeanor punishment, the defendant was thus not "sentenced to confinement and labor in the penitentiary" under this section so as to make this conviction relevant under the second conviction rule prescribing maximum punishment. Mobley v. State, 101 Ga. App. 317, 113 S.E.2d 654 (1960).
If maximum punishment applicable, punishment for misdemeanor inapplicable.
- When it was decided that former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7), fixing the punishment of a second felony at the maximum time for the felony of which the defendant was convicted in this prosecution, is applicable, it necessarily follows that former Code 1933, § 27-2501 (see O.C.G.A. § 17-10-5), which authorizes reductions in the severity of punishment for certain felonies to the level applied in misdemeanors, which was a punishment less than that for a felony, was inapplicable. Moye v. State, 70 Ga. App. 890, 29 S.E.2d 791 (1944).
Judge may impose maximum sentence when prior sentence probated.
- Trial judge did not err in giving a maximum sentence under this section since the record disclosed that on a prior conviction the defendant was sentenced to confinement and labor in the penitentiary with the privilege of serving the sentence on probation. Bennett v. State, 132 Ga. App. 397, 208 S.E.2d 181 (1974).
Failure to probate sentence.
- In sentencing a four-time recidivist, the trial court's failure to exercise the court's discretion to probate a portion of the maximum 20-year sentence was reversible error. Banks v. State, 225 Ga. App. 754, 484 S.E.2d 786 (1997).
Probating portion of sentence appropriate.
- Based upon a defendant's three prior felony convictions, the defendant's sentencing was governed by both O.C.G.A. § 17-10-7(a) and (c), and the trial court was required to apply both. The trial court properly exercised the court's discretion when the court probated a portion of the defendant's sentence. Jefferson v. State, 309 Ga. App. 861, 711 S.E.2d 412 (2011).
Probation was not available option.
- Trial court properly sentenced the defendant to life imprisonment because, pursuant to O.C.G.A. § 17-10-7(a), the court lacked discretion to probate any portion of the sentence. Grace v. State, 347 Ga. App. 396, 819 S.E.2d 674 (2018).
Proof of prior conviction need not be made basis for maximum penalty.
- Allegation and proof that the defendant had previously been sentenced to imprisonment in the penitentiary would tend to prejudice defendant and need not be made as a basis for the imposition of the maximum penalty provided by this section. McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903).
Consolidation for trial.
- Fact that sentences were entered on the same day and that the sentences on one charge ran concurrent with the other sentence did not require the conclusion that the two prior convictions had been "consolidated for trial" within the meaning of the statute when burglary and criminal damage to property convictions were committed against different victims on the same date, both convictions were the result of separate indictments, and a separate order of sentence was entered on each indictment. Thompson v. State, 237 Ga. App. 466, 517 S.E.2d 339 (1999).
Section may be applied to defendant charged with armed robbery.
- If death is not a possible sentence insofar as punishment is concerned, the offense cannot be capital and a defendant charged with armed robbery may be indicted as a recidivist under O.C.G.A. § 17-10-7. Ivory v. State, 160 Ga. App. 193, 286 S.E.2d 435 (1981).
Imposition under O.C.G.A. § 17-10-7 of sentence of life imprisonment for armed robbery is not cruel and unusual punishment in violation of the United States Const., amend. 8. Chappell v. State, 164 Ga. App. 77, 296 S.E.2d 629 (1982), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
Standing of non-parolees to challenge constitutionality.
- Appellant lacked standing to challenge the constitutionality of O.C.G.A. § 17-10-7 on the theory that the statute diminishes the powers and authority of Board of Pardons and Paroles until the defendant claimed a right of parole and the statute was asserted against the defendant as a bar. Sewell v. State, 162 Ga. App. 483, 291 S.E.2d 783 (1982); Stevens v. State, 210 Ga. App. 355, 436 S.E.2d 82 (1993); Guice v. State, 223 Ga. App. 161, 477 S.E.2d 322 (1996).
Defendant lacked standing to challenge the failure to impose parole pursuant to O.C.G.A. § 17-10-7 until the defendant claimed a right of parole and the statute was asserted against the defendant as a bar. Butler v. State, 277 Ga. App. 57, 625 S.E.2d 458 (2005).
Notice to defendant of intent to prosecute as a recidivist performs the function of any required notice in an indictment. Anderson v. State, 176 Ga. App. 255, 335 S.E.2d 487 (1985); Anderson v. State, 199 Ga. App. 559, 405 S.E.2d 558 (1991).
Failure to inform on parole.
- In sentencing the defendant under O.C.G.A. § 17-10-7(c), there was no requirement that the trial court inform the defendant that there was no eligibility for parole. Hildreth v. State, 256 Ga. App. 832, 570 S.E.2d 49 (2002).
Notice of intent to use prior convictions is sufficient.
- There was no error since the trial court found the notice of intent to use prior convictions sufficient to allow the defendant's sentencing because the matters asserted were merely served by the prosecutor and not returned in a separate count of the indictment. Bonds v. State, 203 Ga. App. 51, 416 S.E.2d 329, cert. denied, 203 Ga. App. 905, 416 S.E.2d 329 (1992).
Notice of state's intentions to use prior convictions in aggravation of punishment was fair when served on the defendant more than a week before trial. Martin v. State, 205 Ga. App. 200, 422 S.E.2d 6 (1992).
Because state's written notice sufficiently notified the defendant of the state's intent to seek recidivist sentence under O.C.G.A. § 17-10-7 upon conviction of felony obstruction of an officer, and during plea negotiations the state again referenced the defendant's prior criminal history and reiterated the state would seek recidivist punishment, no error occurred in imposing the sentence based on lack of notice. Evans v. State, 290 Ga. App. 746, 660 S.E.2d 841 (2008).
Prior convictions listed on an attached GCIC as aggravation evidence for a defendant's sentencing for theft by deception were sufficient notice that the state intended to seek sentencing as a recidivist under O.C.G.A. §§ 17-10-2 and17-10-7. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008).
Defendant was properly sentenced as a recidivist under O.C.G.A. § 17-10-7(c) because the prosecutor properly served under O.C.G.A. § 17-16-4(a)(5) the state's notice of intent to seek recidivist punishment and introduce evidence of the defendant's prior convictions on defense counsel on the first day of trial; any defects or untimeliness in the notice were waived as certified copies of the convictions were admitted without objection. Howard v. State, 297 Ga. App. 316, 677 S.E.2d 375 (2009).
State timely filed the state's notice of intent to use the defendant's prior convictions in aggravation of punishment pursuant to O.C.G.A. § 17-10-7(c) because the state provided the notice four days before trial; the state served and filed the state's notice of intent on March 20, 2008, and trial commenced on March 24. Shindorf v. State, 303 Ga. App. 553, 694 S.E.2d 177 (2010).
Trial court did not err by sentencing defendant to serve sentence without parole.
- Trial court did not err by sentencing the defendant to serve the defendant's sentence without parole pursuant to O.C.G.A. § 17-10-7(c) as the state notified the defendant in the indictment and a separate notice that the state intended to seek recidivist punishment, and the state produced copies of three prior felony convictions, which were used to sentence the defendant. King v. State, 290 Ga. App. 118, 658 S.E.2d 883 (2008).
Imprisonment for prior crime not prerequisite to applicability.
- Application of O.C.G.A. § 17-10-7 is not contingent on a person having been convicted of a felony and sentenced to confinement for that person's prior crime; the statute may also apply if the person had been given a probated sentence. Hernandez v. State, 182 Ga. App. 797, 357 S.E.2d 131 (1987).
Prior federal conviction not predicate for second-offender treatment.
- Defendant may not be sentenced as a second offender recidivist based upon a previous mail theft conviction in the United States District Court for the Eastern District of Tennessee. Only Georgia convictions provide the predicate for second-offender treatment. Cofer v. State, 166 Ga. App. 436, 304 S.E.2d 537 (1983) (decided prior to 1984 amendment).
Prior federal felony conviction not shown to be a felony under Georgia law.
- Trial court erred in imposing a recidivist sentence against the defendant without the possibility of parole under O.C.G.A. § 17-10-7(c) because the state failed to establish that the defendant's federal felony conviction for theft or receipt of stolen mail, in violation of 18 U.S.C. § 1708, was considered a felony under Georgia law. Davis v. State, 319 Ga. App. 501, 736 S.E.2d 160 (2012).
Fourth-offender provisions cover both prior federal and other state convictions.
- O.C.G.A. § 17-10-7(b), dealing with fourth offenders, was added in 1953 and specifically encompasses both prior federal convictions and prior convictions in other states. Cofer v. State, 166 Ga. App. 436, 304 S.E.2d 537 (1983).
Section applicable when defendant found guilty of voluntary manslaughter.
- Because O.C.G.A. § 17-10-7 is applicable to felonies and since the death penalty was not sought, neither the offense charged nor the offense of which the accused was found guilty, voluntary manslaughter, was a capital felony within that section's meaning; therefore, the trial court did not err in denying the defendant's motion to strike the recidivist counts. Scott v. State, 172 Ga. App. 725, 324 S.E.2d 565 (1984).
Possession of firearm by convicted felon.
- Prior felony conviction under O.C.G.A. § 16-11-131, regarding possession of firearms by convicted felons, cannot also be used to punish a defendant as a repeat offender under O.C.G.A. § 17-10-7(a). King v. State, 169 Ga. App. 444, 313 S.E.2d 144 (1984).
Prior felony conviction for possession of a firearm by a convicted felon was properly considered for purposes of sentencing a defendant as a recidivist because the court did not use the underlying felony used to convict the defendant of being a felon in possession of a firearm to enhance the defendant's punishment as a repeat offender. Nelson v. State, 210 Ga. App. 249, 435 S.E.2d 750 (1993).
Rape now included in cases to which
§ 17-10-7 applies. - Capital cases to which O.C.G.A. § 17-10-7 is not applicable no longer include the offense of rape. Haslem v. State, 160 Ga. App. 251, 286 S.E.2d 748 (1981).
Mistaken sentence may be corrected.
- Judge who through a mistaken interpretation of the law incorrectly sentences an habitual offender to less than the term required by law is required and empowered to increase the sentence later on after the error becomes known. Wallace v. State, 175 Ga. App. 685, 333 S.E.2d 874 (1985).
Defendant may not contest O.C.G.A. § 17-10-7 until defendant claims right of parole and the statute is asserted against defendant as a bar. Ivory v. State, 160 Ga. App. 193, 286 S.E.2d 435 (1981); Martin v. State, 205 Ga. App. 200, 422 S.E.2d 6 (1992).
Consideration of mitigating factor when mandatory sentence applies.
- Although O.C.G.A. § 17-14-8 requires the trial court to consider fact of tender of restitution by criminal offender to a victim before imposing sentence, failure of trial court to consider this fact was not error since the sentence imposed was mandatory under O.C.G.A. § 17-10-7. Chappell v. State, 164 Ga. App. 77, 296 S.E.2d 629 (1982), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).
If armed robbery indictment contains recidivist count which specifically invokes O.C.G.A. § 17-10-7, rather than the specific recidivist sentencing statute for armed robbery, O.C.G.A. § 16-8-41(b), the trial court errs when the court sets the final sentence pursuant to § 16-8-41(b). Under such an indictment and a guilty verdict, the trial court is required to sentence the defendant, pursuant to § 17-10-7(a), to "the longest period of time prescribed" for armed robbery, that sentence being life imprisonment. State v. Baldwin, 167 Ga. App. 737, 307 S.E.2d 679 (1983); Stone v. State, 218 Ga. App. 350, 461 S.E.2d 548 (1995).
For the purpose of punishment, armed robbery was not a capital felony; the general recidivist statute, O.C.G.A. § 17-10-7(c), included, for purpose of punishment, armed robbery, and a sentence of life without parole for defendant's armed robbery conviction was proper and was affirmed. Dixon v. State, 267 Ga. App. 479, 600 S.E.2d 415 (2004).
Life without parole.
- There is no requirement that a kidnapping victim receive bodily injury when sentencing is pursuant to O.C.G.A. § 17-10-6.1; moreover, as the defendant had also been convicted of armed robbery, the trial court correctly imposed a mandatory life without parole sentence for either of the defendant's second serious violent felonies: kidnapping and armed robbery. Moorer v. State, 286 Ga. App. 395, 649 S.E.2d 537 (2007), cert. denied, No. S07C1910, 2007 Ga. LEXIS 806 (Ga. 2007).
An inmate who sought a writ of habeas corpus had been properly sentenced to life without the possibility of parole under O.C.G.A. § 17-10-7(b)(2). A felony murder charge with the underlying felony of possession of a firearm by a convicted felon had been vacated by operation of law, and no conviction on that charge had been entered; accordingly, unlike the case relied upon by the habeas court, the trial court had not used the prior felony conviction both to support a possession conviction and to enhance the inmate's sentence. Walker v. Hale, 283 Ga. 131, 657 S.E.2d 227, cert. denied, 555 U.S. 911, 129 S. Ct. 255, 172 L. Ed. 2d 192 (2008).
Proper application of recidivism.
- Pursuant to O.C.G.A. § 17-10-7(a), the defendant's two prior convictions as a habitual violator allowed the defendant to be sentenced as a recidivist after the defendant was convicted of two drug crimes. Morrison v. State, 256 Ga. App. 23, 567 S.E.2d 360 (2002).
Because the defendant failed to show an infringement of rights or a procedural irregularity relating to the three prior felony convictions the state used to support the imposition of a recidivist sentence, that sentence was upheld. Hampton v. State, 287 Ga. App. 896, 652 S.E.2d 915 (2007).
In a felony murder case, as the defendant was convicted of both predicate felonies, armed robbery and burglary, it was within the trial court's discretion to choose to merge the former rather than the latter into the felony murder count for which the defendant was sentenced. Thus, the defendant was not sentenced as a recidivist for felony murder, but was properly sentenced under O.C.G.A. § 17-10-7(c) to 20 years without the possibility of parole for the separate crime of burglary, which did not merge into the conviction for felony murder while in the commission of an armed robbery. Jackson v. State, 284 Ga. 484, 668 S.E.2d 700 (2008).
As a violation of O.C.G.A. § 40-5-58(c)(1) (operating a vehicle by a habitual offender whose license has been revoked) is punishable by one to five years' imprisonment, the offense is a felony. Since a defendant had four prior convictions for violations of § 40-5-58(c)(1), the defendant was properly sentenced as a recidivist under O.C.G.A. § 17-10-7(c). Hollis v. State, 295 Ga. App. 529, 672 S.E.2d 487 (2009).
Trial court did not err in sentencing the defendant as a recidivist under O.C.G.A. § 17-10-7(a) because the indictment stated that the defendant was in lawful confinement for the 1987 felony convictions and, thus, those convictions were properly admitted at trial to prove felony escape, O.C.G.A. § 16-10-52, for which the defendant could be sentenced up to ten years imprisonment; because the defendant's 1987 conviction for theft by taking was not used by the state as the predicate felony for the offense of felony escape pursuant to § 16-10-52(b), the 1987 felony theft by taking conviction remained available for sentence enhancement under § 17-10-7(a), and, inasmuch as the record was silent as to the specific felony conviction the trial court relied upon for sentence enhancement, it had to be presumed that the trial court knew the state of the law and did not use any of the 1987 felony convictions listed in the escape indictment to enhance the defendant's punishment under § 17-10-7(a). Allen v. State, 286 Ga. 273, 687 S.E.2d 417 (2009).
There was no error in the trial court's entry of sentence under O.C.G.A. § 17-10-7(d) because the defendant pled guilty to various counts of entering an automobile and theft by receiving, which were alleged in three separate indictments on which three separate orders of sentence were entered; each indictment alleged crimes that occurred on different days. Baker v. State, 306 Ga. App. 99, 701 S.E.2d 572 (2010).
Instruction on elements of recidivism.
- Trial court was not required by the constitution to instruct the jury on the elements of recidivism. McCoy v. Newsome, 953 F.2d 1252 (11th Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283, 119 L. Ed. 2d 208 (1992).
Recidivism not jury issue.
- Defendant has no right to a jury trial on a recidivism count. Zachery v. State, 241 Ga. App. 722, 527 S.E.2d 601 (2000).
Controlling issue on appeal is would result have been different.
- When the defendant showed the constitutional deficiency of the defendant's appellate counsel for not raising an improper jury instruction, the habeas court used the wrong analysis of whether the defendant also showed prejudice by considering the possibility that the defendant would be subject to the same punishment on remand, as a recidivist under O.C.G.A. § 17-10-7(b), and thus showed no prejudice because the proper analysis looked only at whether the result of the defendant's appeal would have been different. Nelson v. Hall, 275 Ga. 792, 573 S.E.2d 42 (2002).
Issues raised on appeal.
- Since the defendant did not raise the issue of intelligent and voluntary waiver with respect to prior guilty pleas in the trial court, it was held that issues which were not raised in the trial court cannot be raised for the first time on appeal. Mincey v. State, 186 Ga. App. 839, 368 S.E.2d 796 (1988).
Defendant's life sentence under O.C.G.A. § 17-10-7 should be sustained if the state demonstrates that the defendant was previously convicted of a felony under the laws of this state and was sentenced to confinement in a penal institution. Melton v. State, 216 Ga. App. 215, 454 S.E.2d 545 (1995).
No review of sentence within guidelines.
- Appellate court declined to review the defendant's 30-year sentence because the sentence was within the statutory guidelines; the defendant was found guilty of possessing cocaine with the intent to distribute, the state introduced three prior felony convictions in aggravation of sentencing pursuant to O.C.G.A. § 17-10-2(a), and given the defendant's prior drug convictions and the mandate of O.C.G.A. § 17-10-7(c), the defendant faced a maximum punishment of life in prison under O.C.G.A. § 16-13-30(d). Jackson v. State, 284 Ga. App. 619, 644 S.E.2d 491 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. 2007).
Ten-year sentence for shoplifting appropriate.
- In applying the statute for imposition of recidivist sentencing, based on the defendant's four prior felony drug convictions, the trial court had no discretion with regard to the term of the sentence and was required to sentence the defendant to ten years, which was the maximum sentence for theft by shoplifting. Allen v. State, 325 Ga. App. 752, 754 S.E.2d 795 (2014).
Sentence of ten years to serve for felony shoplifting was upheld; contrary to the defendant's contention, the trial court did not sentence the defendant as a recidivist pursuant to O.C.G.A. § 17-10-7. The trial court's imposition of a sentence within the statutory limits would not be disturbed. Tyner v. State, 313 Ga. App. 557, 722 S.E.2d 177 (2012).
No error in imposition of sentence.
- As the defendant was not sentenced as a recidivist under O.C.G.A. § 17-10-7(c) or to the maximum term pursuant to § 17-10-7(a) for a conviction of aggravated assault, in violation of O.C.G.A. § 16-5-21(b), the defendant's claim that the sentencing imposed was improper lacked merit. Tatum v. State, 297 Ga. App. 550, 677 S.E.2d 740 (2009).
Sentence of 30 years for each of the three attempted armed-robbery convictions fell within the statutory range and was not void. Issa v. State, 340 Ga. App. 327, 796 S.E.2d 725 (2017).
Sentence was within statutory range.
- Trial court did not err in imposing separate sentences for the defendant's two convictions because the sentence was within the statutory range and the law allowed separate and consecutive punishment for separate criminal transactions; O.C.G.A. § 17-10-7 applies to the use of prior convictions to enhance the punishment of repeat offenders, and the statute does not apply to the trial court's authority to impose separate sentences for a defendant's current convictions of two distinct offenses committed on different dates. Ross v. State, 313 Ga. App. 695, 722 S.E.2d 411 (2012).
Sentence not cruel and unusual.
- Trial court did not commit cruel and unusual punishment in sentencing a defendant to two consecutive terms of 20 years to serve in confinement for two burglary convictions under O.C.G.A. § 16-7-1(a), based on the defendant's recidivism under O.C.G.A. § 17-10-7(c), because the sentence was within statutory limits. Hight v. State, 302 Ga. App. 826, 692 S.E.2d 69 (2010).
Cited in Stinson v. State, 65 Ga. App. 592, 16 S.E.2d 111 (1941); Vann v. State, 72 Ga. App. 301, 33 S.E.2d 742 (1945); Norton v. State, 73 Ga. App. 307, 36 S.E.2d 120 (1945); Randall v. State, 73 Ga. App. 354, 36 S.E.2d 450 (1945); Rampley v. State, 81 Ga. App. 782, 60 S.E.2d 180 (1950); Cozzolino v. Colonial Stores, Inc., 213 Ga. 225, 98 S.E.2d 613 (1957); Hooks v. State, 215 Ga. 869, 114 S.E.2d 6 (1960); Lewis v. State, 113 Ga. App. 714, 149 S.E.2d 596 (1966); McEwen v. State, 113 Ga. App. 765, 149 S.E.2d 716 (1966); Burke v. State, 116 Ga. App. 753, 159 S.E.2d 176 (1967); Little v. State, 121 Ga. App. 792, 175 S.E.2d 922 (1970); Cook v. Smith, 427 F.2d 1172 (5th Cir. 1970); Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972); Hobbs v. State, 229 Ga. 556, 192 S.E.2d 903 (1972); Green v. State, 129 Ga. App. 27, 198 S.E.2d 343 (1973); Mathis v. State, 133 Ga. App. 445, 211 S.E.2d 400 (1974); Ingram v. State, 137 Ga. App. 412, 224 S.E.2d 527 (1976); Hinton v. State, 138 Ga. App. 702, 227 S.E.2d 474 (1976); Herrin v. State, 138 Ga. App. 729, 227 S.E.2d 498 (1976); Brogdon v. State, 138 Ga. App. 900, 228 S.E.2d 5 (1976); Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976); Massey v. State, 141 Ga. App. 557, 234 S.E.2d 144 (1977); Cox v. State, 241 Ga. 154, 244 S.E.2d 1 (1978); Simmons v. State, 148 Ga. App. 317, 251 S.E.2d 167 (1978); Green v. State, 244 Ga. 755, 262 S.E.2d 68 (1979); Newton v. State, 154 Ga. App. 98, 267 S.E.2d 641 (1980); Wilson v. State, 158 Ga. App. 174, 279 S.E.2d 345 (1981); Jackson v. State, 158 Ga. App. 702, 282 S.E.2d 181 (1981); Davis v. State, 159 Ga. App. 356, 283 S.E.2d 286 (1981); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); State v. Shuman, 161 Ga. App. 304, 287 S.E.2d 757 (1982); Rothfuss v. State, 160 Ga. App. 863, 288 S.E.2d 579 (1982); Jones v. State, 161 Ga. App. 620, 288 S.E.2d 795 (1982); Henderson v. State, 162 Ga. App. 320, 292 S.E.2d 77 (1982); Waters v. State, 249 Ga. 671, 293 S.E.2d 333 (1982); Bradshaw v. State, 162 Ga. App. 750, 293 S.E.2d 360 (1982); Staton v. State, 164 Ga. App. 464, 297 S.E.2d 375 (1982); Dodd v. Williams, 560 F. Supp. 372 (N.D. Ga. 1983); Griffin v. State, 170 Ga. App. 287, 316 S.E.2d 797 (1984); Dobbs v. State, 180 Ga. App. 714, 350 S.E.2d 469 (1986); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); Darty v. State, 188 Ga. App. 447, 373 S.E.2d 389 (1988); Edwards v. State, 188 Ga. App. 667, 374 S.E.2d 97 (1988); Brown v. State, 191 Ga. App. 875, 383 S.E.2d 361 (1989); Yearby v. State, 259 Ga. 461, 385 S.E.2d 414 (1989); Smith v. State, 193 Ga. App. 208, 387 S.E.2d 419 (1989); Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990); Daniel v. State, 196 Ga. App. 160, 395 S.E.2d 638 (1990); Andrews v. State, 200 Ga. App. 47, 406 S.E.2d 801 (1991); Brenneman v. State, 200 Ga. App. 111, 407 S.E.2d 93 (1991); Jenkins v. State, 201 Ga. App. 654, 413 S.E.2d 460 (1991); Rich v. State, 207 Ga. App. 343, 427 S.E.2d 796 (1993); Wallace v. State, 216 Ga. App. 718, 455 S.E.2d 615 (1995); Knight v. State, 221 Ga. App. 92, 470 S.E.2d 486 (1996); Beck v. State, 222 Ga. App. 168, 473 S.E.2d 263 (1996); Scott v. State, 240 Ga. App. 586, 524 S.E.2d 287 (1999); Mann v. State, 240 Ga. App. 809, 524 S.E.2d 763 (1999); Burruss v. State, 242 Ga. App. 241, 529 S.E.2d 375 (2000); Gary v. State, 244 Ga. App. 577, 536 S.E.2d 220 (2000); Davis v. State, 244 Ga. App. 715, 536 S.E.2d 603 (2000); Henderson v. State, 247 Ga. App. 31, 543 S.E.2d 95 (2000); Teasley v. State, 247 Ga. App. 580, 545 S.E.2d 17 (2001); Walton v. State, 247 Ga. App. 717, 544 S.E.2d 540 (2001); Sweeder v. State, 246 Ga. App. 557, 541 S.E.2d 414 (2000); Duncan v. State, 253 Ga. App. 239, 558 S.E.2d 783 (2002); McGee v. State, 255 Ga. App. 708, 566 S.E.2d 431 (2002); Harper v. State, 262 Ga. App. 136, 586 S.E.2d 336 (2003); McMorris v. State, 263 Ga. App. 630, 588 S.E.2d 817 (2003); Shields v. State, 264 Ga. App. 232, 590 S.E.2d 217 (2003); Dawson v. State, 260 Ga. App. 824, 581 S.E.2d 371 (2003); Hunter v. State, 261 Ga. App. 276, 582 S.E.2d 228 (2003); Woodson v. State, 268 Ga. App. 731, 605 S.E.2d 822 (2004); Henry v. State, 279 Ga. 615, 619 S.E.2d 609 (2005); Scott v. State, 281 Ga. App. 106, 635 S.E.2d 582 (2006); Dozier v. Jackson, 282 Ga. App. 264, 638 S.E.2d 337 (2006); Snelson v. State, 286 Ga. App. 203, 648 S.E.2d 647 (2007); Self v. State, 288 Ga. App. 77, 653 S.E.2d 787 (2007); Smith v. State, 289 Ga. App. 742, 658 S.E.2d 156 (2008), cert. denied, 2008 Ga. LEXIS 462 (Ga. 2008); Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008); Hooks v. State, 284 Ga. 531, 668 S.E.2d 718 (2008), overruled on other grounds, Williams v. State, 287 Ga. 192, 695 S.E.2d 244 (2010); Hampton v. State, 294 Ga. App. 857, 670 S.E.2d 502 (2008); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008); Cobb v. State, 309 Ga. App. 70, 709 S.E.2d 9 (2011); McCowan v. State, 325 Ga. App. 509, 753 S.E.2d 775 (2014); Williams v. State, 326 Ga. App. 784, 757 S.E.2d 448 (2014); Payne v. State, 338 Ga. App. 677, 791 S.E.2d 451 (2016), overruled on other grounds by Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019); Harvey v. State, 344 Ga. App. 761, 811 S.E.2d 479 (2018), cert. denied, No. S18C0930, 2018 Ga. LEXIS 628 (Ga. 2018); Troutman v. State, 348 Ga. App. 375, 823 S.E.2d 66 (2019); Worthen v. State, 304 Ga. 862, 823 S.E.2d 291 (2019); Dozier v. Watson, 305 Ga. 629, 827 S.E.2d 276 (2019); Purnell v. State, Ga. App. , 843 S.E.2d 637 (2020).
Allegation and Proof of Prior Convictions
Knowing and voluntarily entered pleas.
- Defendant's signature on forms in which the defendant acknowledged that the defendant was aware of specified constitutional rights and that the defendant was waiving those rights by pleading guilty, which the defendant signed in regard to three prior negotiated guilty pleas, showed that the defendant was aware the defendant was waiving constitutional rights when entering those guilty pleas, and permitted the trial court to find the state met the state's burden of proving the defendant's guilty pleas were validly entered; accordingly, the state showed that those prior pleas were knowingly and voluntarily entered for the purpose of the defendant being sentenced as a recidivist under O.C.G.A. § 17-10-7(c). Hall v. State, 261 Ga. App. 64, 581 S.E.2d 695 (2003).
Offenses charged in indictment for which defendant is on trial cannot be considered in determining defendant's status as a recidivist. McCoy v. State, 168 Ga. App. 598, 310 S.E.2d 2 (1983).
First offender guilty plea was not prior conviction.
- Defendant would not have been subject to recidivist treatment and plea counsel's advice in this regard was erroneous because one of the prior felony convictions was based on a first offender guilty plea, which did not constitute a "conviction" for those purposes. Ingram v. State, 338 Ga. App. 552, 790 S.E.2d 641 (2016).
First offender probation not admissible.
- Trial court erred in admitting the defendant's prior guilty plea, which had been resolved by placing the defendant on probation, as a first offender, in sentencing the defendant as a recidivist; however, the error was harmless since there was evidence of another guilty plea to felony counts sufficient to support a maximum sentence. Scott v. State, 216 Ga. App. 692, 455 S.E.2d 609 (1995).
Defendant violated the terms of first offender probation.
- Due to the defendant's earlier violation of the terms of the defendant's first offender probation, the defendant was a convicted felon at the time of sentencing by the trial court; therefore, the trial court did not err in treating the defendant as a repeat offender. Daniels v. State, 271 Ga. 167, 517 S.E.2d 66 (1999).
Prior federal felony conviction shown to be felony under Georgia law.
- For purposes of Georgia's recidivist statute, the defendant's federal conviction for conspiracy to transport stolen goods, in which the defendant admitted that the defendant stole more than $5,000 worth of silver, and that the defendant transported that stolen property across state lines, was a conviction that would have constituted a felony under Georgia law based on the state offense of theft by receiving as the defendant received stolen property with a value that exceeded $500. Nordahl v. State, 344 Ga. App. 686, 811 S.E.2d 465 (2018), aff'd, 306 Ga. 15, 829 S.E.2d 99 (2019).
Convictions while a juvenile.
- Defendant could not be found to be a recidivist under O.C.G.A. § 17-10-7(c) since one of the defendant's prior felony convictions was invalid as the conviction was for burglaries committed when the defendant was 16 years of age; the superior court did not have concurrent jurisdiction with the juvenile court to find the defendant guilty of a felony under O.C.G.A. § 15-11-28(b)(1) because the punishment for burglary was neither death nor life imprisonment under O.C.G.A. § 16-7-1. Smith v. State, 266 Ga. App. 111, 596 S.E.2d 230 (2004).
Convictions when juvenile tried as adult.
- Defendant's sentence to life in prison without parole, under the three felony recidivist sentencing provision of O.C.G.A. § 17-10-7(c), was proper as the trial court could rely on an armed robbery conviction from the superior court against the defendant when the defendant was 16 years old as the court properly assumed jurisdiction over the matter. Moore v. State, 276 Ga. App. 55, 622 S.E.2d 417 (2005).
Out-of-state convictions for acts committed while defendant was a juvenile could not be used as prior felony convictions for purposes of recidivist sentencing under O.C.G.A. § 17-10-7 because the defendant would not have been convicted of felonies in this state, but would have been adjudicated delinquent. Miller v. State, 231 Ga. App. 869, 501 S.E.2d 42 (1998).
Trial court did not err in sentencing the defendant as a recidivist because the trial court committed no error in using the defendant's 1991 Michigan armed robbery conviction as a predicate offense for recidivist punishment as the state met the state's burden of proving that the defendant's Michigan conviction was for conduct that would have been considered a felony under Georgia law because, if the defendant had committed the offense of armed robbery in Georgia as a juvenile in 1991, a superior court would have had concurrent jurisdiction over the matter and the defendant could have been convicted of the felony offense of armed robbery. Anderson v. State, 337 Ga. App. 739, 788 S.E.2d 831 (2016).
Requirements of indictment for recidivist punishment.
- Indictment for the second offense must allege the indictment and conviction of the accused for the first offense. Harris v. State, 40 Ga. App. 228, 149 S.E. 153 (1929).
Defendant must be indicted as a recidivist in order to impose recidivist punishment. Brown v. State, 144 Ga. App. 509, 241 S.E.2d 621 (1978).
For one to receive recidivist punishment one must have been indicted under a recidivist statute, one's prior convictions having been considered by the grand jury and having been included in the indictment. Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981).
Defendant's prior felony convictions could not be used against the defendant since there was no recidivist charge contained in the indictment and the record did not contain any other affirmative notice to the defendant that the defendant's prior felony offenses would be used against the defendant for recidivist purposes during sentencing. State v. Freeman, 198 Ga. App. 553, 402 S.E.2d 529 (1991).
In a prosecution for armed robbery, even though the defendant was not indicted as a recidivist under O.C.G.A. § 17-10-7, the court did not err in sentencing the defendant as a recidivist since the state provided notice to the defendant that the defendant's prior offenses would be used against the defendant for recidivist purposes during sentencing. Kinsey v. State, 219 Ga. App. 204, 464 S.E.2d 648 (1995).
With regard to a defendant's conviction for burglary, the trial court properly sentenced the defendant under O.C.G.A. § 17-10-7 to 20 years, with ten years to serve in prison without parole and the remainder of the sentence suspended on the condition that the defendant not violate any laws, as a result of three prior felony convictions because the defendant waived any claimed error by failing to challenge the sentence. However, even if the error had not been waived, the recidivist sentence was proper since the state proved all four of the convictions that were listed in the indictment and notices and, although the trial court stated that the court was not relying on the defendant's robbery convictions in imposing a sentence, there was no reason those convictions could not be used to support the sentence. Battise v. State, 295 Ga. App. 833, 673 S.E.2d 262 (2009), cert. denied, No. S09C0917, 2009 Ga. LEXIS 369 (Ga. 2009).
Trial court did not err by sentencing the defendant as a recidivist since the defendant's convictions for selling cocaine and possessing a firearm as a convicted felon were separate convictions and were not merged for sentencing purposes. The trial court's use of the same waiver form with regard to the defendant's guilty pleas did not negate the fact that the convictions were separate and were not consolidated. Crutchfield v. State, 295 Ga. App. 490, 672 S.E.2d 467 (2009).
Recidivist punishment appropriate.
- Because the state provided adequate notice to the defendant of the state's intent to ask for recidivist sentencing and counsel chose to move forward at sentencing without making any objection, the trial court did not err in sentencing the defendant as a recidivist. Pruitt v. State, 354 Ga. App. 73, 840 S.E.2d 597 (2020).
No evidence that out-of-state convictions were felonies in Georgia.
- Because the trial court considered the out-of-state convictions without evidence that the convictions were for conduct that would have constituted felonies in Georgia, the felony sentences were vacated and the case remanded for re-sentencing. Woodson v. State, 242 Ga. App. 67, 530 S.E.2d 2 (2000), aff'd, 273 Ga. 557, 544 S.E.2d 431 (2001).
When the defendant was sentenced to a life sentence as a recidivist, but a certified copy of the defendant's prior conviction from another state was not included in the record, the appellate court could not uphold the sentence as the court had no opportunity to inspect the prior conviction, nor did the state offer any proof that the acts of which the defendant was convicted in the prior conviction were a felony in Georgia, and it appeared that the prior sentence was for probation alone, meaning that the defendant was not "sentenced to confinement in a penal institution" as required by O.C.G.A. § 17-10-7(a). Wheeler v. State, 270 Ga. App. 363, 606 S.E.2d 612 (2004).
Trial court erred in sentencing the defendant as a recidivist because the defendant's prior Florida convictions did not match the elements of felonies in Georgia and, thus, did not qualify as predicate convictions. Butler v. State, 354 Ga. App. 473, 841 S.E.2d 162 (2020).
Proof of previous felony allegation must be made before the accused can be subjected to the maximum punishment prescribed. Harris v. State, 40 Ga. App. 228, 149 S.E. 153 (1929).
Failure to charge recidivism in indictment not error.
- Since the state served notice to the defendant that the state planned to seek recidivist sentencing and to offer the defendant's prior convictions into evidence as aggravating factors, it was not error for the state to fail to charge the defendant under the recidivist statute in the indictment or for the court to sentence the defendant under such statute. Mikell v. State, 231 Ga. App. 85, 498 S.E.2d 531 (1998).
When sentencing the defendant as a recidivist, the trial court erred in considering prior convictions which were not supported by admissible evidence. Williams v. State, 235 Ga. App. 876, 510 S.E.2d 848 (1999).
Recidivism evidence used to enhance sentence.
- Trial court may impose a higher degree of punishment for an offense due to evidence in aggravation of the punishment of O.C.G.A. § 17-10-2 and not have sentenced the defendant under a recidivist statute when the defendant was never indicted under a recidivist statute. Williams v. State, 208 Ga. App. 716, 431 S.E.2d 469 (1993).
Trial court properly resentenced the defendant to ten years, six to serve, on the defendant's guilty plea to sale of marijuana as the state provided an additional recidivist notice which listed three prior felony convictions and O.C.G.A. § 17-10-7(a) did not give the trial judge discretion to impose less than the maximum sentence under those circumstances. West v. State, 255 Ga. App. 334, 565 S.E.2d 538 (2002).
Because the state introduced certified copies of convictions at the defendant's sentencing proving that, while represented by counsel, defendant pled guilty to at least three separate felony offenses, and the defendant did not produce any counter evidence showing an infringement of the defendant's rights or a procedural irregularity in the taking of the pleas, the state properly met the state's burden of proof of showing recidivism. Clark v. State, 279 Ga. 243, 611 S.E.2d 38 (2005).
Trial court did not err in considering the defendant's three prior sale-of-cocaine convictions as three separate convictions for purposes of O.C.G.A. § 17-10-7(c); even though two of the prior convictions were entered on the same date by the same judge and had concurrent sentences, the convictions were separately indicted and concerned two separate sales of cocaine that took place on different days. Butler v. State, 277 Ga. App. 57, 625 S.E.2d 458 (2005).
Because the defendant's three prior felony convictions, and a subsequent conviction of possession of a firearm by a convicted felon as a result of one or more of those felonies, remained separate felonies that could be used to impose a recidivist punishment for the commission of yet another felony, and the defendant did not seek to collaterally attack any of those convictions, the recidivists sentences imposed under O.C.G.A. § 17-10-7 were valid. Campbell v. State, 279 Ga. App. 331, 631 S.E.2d 388 (2006).
Trial court properly sentenced the defendant as a repeat offender under O.C.G.A. § 17-10-7(c) since the defendant had previously been convicted of three prior crimes which would have been felonies if committed in Georgia; moreover, there was no evidence in the record to support claims that defendant was not represented by counsel in the prior matters. McConnell v. State, 281 Ga. App. 303, 635 S.E.2d 882 (2006).
Because sufficient proof of the necessary prior convictions, even without inclusion of the defendant's first offender plea, existed to authorize punishment under both O.C.G.A. §§ 16-13-30 and17-10-7, the recidivist sentence imposed by the trial court was upheld. Johnson v. State, 284 Ga. App. 724, 644 S.E.2d 544, cert. denied, No. S07C1179, 2007 Ga. LEXIS 538 (Ga. 2007).
Trial court properly denied the defendant's motion complaining of the imposition of recidivist sentencing under O.C.G.A. § 17-10-7(c) as the defendant did not establish that the trial court erred in considering any of the defendant's three prior felony convictions for purposes of recidivist sentencing. Defendant's argument that a third prior conviction was not final since the conviction still involved a period of probation that had not yet been discharged or revoked was found meritless as the prior conviction at issue did not involve a first offender sentence. Land v. State, 291 Ga. App. 617, 662 S.E.2d 368 (2008).
Trial court correctly sentenced a defendant to serve life without the possibility of parole because the defendant was a four-time recidivist and the maximum sentence for rape was life in prison. Further, the state provided the defendant with notice prior to trial that the state would seek to have the defendant sentenced as a recidivist, pursuant to O.C.G.A. § 17-10-7. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).
Trial court erred in using the defendant's August 2001 felony convictions to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(a) because, at the time of the defendant's sentencing for escape in October 2001, the August 2001 convictions were unavailable for recidivist treatment since those convictions were pending on appeal; the defendant was found guilty and sentenced on armed robberies in August 2001, the defendant appealed those convictions, and the convictions were affirmed three years later. Allen v. State, 286 Ga. 273, 687 S.E.2d 417 (2009).
Trial court properly sentenced the defendant as a recidivist under O.C.G.A. § 17-10-7 following a shoplifting conviction because the record of the plea proceeding in a prior case wherein the defendant pled guilty belied the claim that the defendant was not adequately advised of the right to a jury trial, thus, the trial court did not err in considering, for purposes of sentencing, that prior conviction. Foster v. State, 319 Ga. App. 815, 738 S.E.2d 651 (2013).
Because the felony convictions not challenged by the defendant would have sufficed to render the defendant a recidivist and because both of the defendant's attacks on prior convictions for drug possession with intent to distribute lacked merit, the trial court did not err when the court considered those prior convictions and sentenced the defendant to serve 30 years without parole under O.C.G.A. §§ 16-13-30(b) and17-10-7(c). Merritt v. State, 329 Ga. App. 871, 766 S.E.2d 217 (2014).
Evidence of previous conviction relevant to punishment for second conviction.
- As to defendants charged with a felony punishable by labor in the penitentiary, evidence of a previous conviction and sentence for a felony is relevant evidence on the question of the punishment to be inflicted in the event of a conviction for a second felony. Kryder v. State, 212 Ga. 272, 91 S.E.2d 612, cert. denied, 352 U.S. 850, 77 S. Ct. 71, 1 L. Ed. 2d 61 (1956).
Introduction of former indictments, pleas of guilty, and sentences are the highest and best evidence of such facts. Timbs v. State, 71 Ga. App. 141, 30 S.E.2d 290 (1944).
Use of arrest photographs to demonstrate prior convictions.
- Trial court did not abuse the court's discretion during the sentencing phase of the defendant's trial on charges of armed robbery and possession of a firearm during the commission of a felony when the court considered photographs that were taken when the defendant was arrested on another charge to determine that the defendant was the person convicted of that charge, even though the defendant was arrested and convicted under another name, or when the court found that the defendant was subject to a sentence of life in prison without parole because the defendant had prior felony convictions. Farmer v. State, 268 Ga. App. 831, 603 S.E.2d 16 (2004).
Allegation and proof of prior convictions generally.
- Fact of a former sentence must be charged in the indictment if a second conviction would affect the grade of the offense, or require the imposition of a different punishment. McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903).
If under this section it was provided that the maximum punishment is to be inflicted in the event the accused has been convicted of a prior felony, such fact becomes a part of the offense charged, and it was necessary to allege and prove the prior conviction. Berry v. State, 51 Ga. App. 442, 180 S.E. 635 (1935).
If prior felony convictions are intended to be proved for the purpose of obtaining a maximum sentence, the previous convictions must be alleged in the indictment as well as proved on the trial of the case. Kitchens v. State, 113 Ga. App. 663, 149 S.E.2d 373 (1966).
Trial court erred in sentencing the defendant as a recidivist under O.C.G.A. § 17-10-7 because the trial court did not admit into the record two certified copies of the defendant's prior convictions tendered by the state or a third copy that the prosecution had been waiting to receive from the clerk's office, and defense counsel did not waive the requirement that the convictions be proven by the state. Tanksley v. State, 323 Ga. App. 299, 743 S.E.2d 585 (2013).
It is mandatory that previous convictions be set out in indictment. Croker v. Smith, 225 Ga. 529, 169 S.E.2d 787 (1969).
If the state elects to aver in a possession of firearm by felon count that the defendant has been convicted of more than one prior felony offense, such averment is descriptive of the manner in which the offense was committed and, as such, the state must make an honest attempt to prove the offense "as laid." State v. Freeman, 198 Ga. App. 553, 402 S.E.2d 529 (1991).
Prior convictions not required in indictment.
- Since 1974 when Georgia adopted judge sentencing (O.C.G.A. § 17-10-2) it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state's intention to seek recidivist punishment and of the identity of the prior convictions. Wainwright v. State, 208 Ga. App. 777, 432 S.E.2d 555 (1993).
When the prior convictions do no more than subject the defendant to a greater risk of the maximum sentence (O.C.G.A. § 17-10-7(a)) or even to a certainty of the maximum sentence (O.C.G.A. § 17-10-7(b)) for the crime as indicted, the prior convictions need not be alleged in the indictment; imposition of the maximum sentence has already been authorized by the grand jury's action, and adequate advance notice to the defendant is assured by O.C.G.A. § 17-10-2(a). Wainwright v. State, 208 Ga. App. 777, 432 S.E.2d 555 (1993).
Records of the defendant's pleas to two prior indictments tendered in aggravation of punishment were properly not treated as one offense since there was no evidence that the indictments were "consolidated for trial" as contemplated by O.C.G.A. § 17-10-7(d). Robinson v. State, 232 Ga. App. 280, 501 S.E.2d 536 (1998).
Since the state gave the defendant notice that the state intended to seek sentencing under the recidivist statute and, at sentencing, offered into evidence certified copies of previous convictions, imposition of an enhanced sentence was not invalid on grounds that the trial court never admitted the certified copies into evidence. Moore v. State, 250 Ga. App. 75, 550 S.E.2d 667 (2001).
Although the language in the convictions may not track Georgia's armed robbery statute, if a defendant's Missouri conviction's language describes that the defendant was in possession of a deadly weapon when the defendant forcefully and violently took valuables from the victim, such description was sufficient to prove that the defendant was convicted of an offense in Missouri, which would have been the serious violent felony of armed robbery had the offense occurred in Georgia pursuant to O.C.G.A. § 17-10-7(b)(2). Anderson v. State, 261 Ga. App. 456, 582 S.E.2d 575 (2003).
Trial court did not err in not including a recidivism count in the indictment as the defendant's prior convictions did not constitute facts increasing the defendant's punishment that were required to be submitted to a jury. Nordahl v. State, 344 Ga. App. 686, 811 S.E.2d 465 (2018), aff'd, 306 Ga. 15, 829 S.E.2d 99 (2019).
Failure to object to void sentence did not mean sentence not vacated on appeal.
- If, at the time of a recidivist sentencing, the period of probation on the defendant's prior first offender sentence had expired with no revocation, the discharge was automatic and the first offender sentence was not a felony "conviction." The recidivist sentence was thus illegal, and since a challenge to the void sentence was not waived by the defendant's failure to object, the sentence was vacated. Headspeth v. State, 266 Ga. App. 414, 597 S.E.2d 503 (2004).
Defendant was properly sentenced under the recidivist statute, O.C.G.A. § 17-10-7(a), even though a certified copy of the prior conviction was not formally entered into evidence since the state put the defendant on notice that the state would offer evidence of the defendant's prior conviction, the defendant did not challenge the legal sufficiency of the prior conviction, and the defendant's own witness acknowledged that the defendant had a prior conviction. Thompson v. State, 266 Ga. App. 29, 596 S.E.2d 205 (2004).
Alford plea sufficient.
- In a trial in which the state sought to show that the defendant was a recidivist for sentencing purposes, although the documents did not contain direct evidence of the defendant's plea in one of the prior convictions, the documents were sufficient to establish that the defendant entered an Alford plea, which was a guilty plea and was sufficient for purposes of O.C.G.A. § 17-10-7; for the one conviction at issue, the documents included an indictment which was left blank as to the plea section, a sentencing form which indicated that defendant entered an Alford plea, and an order of restitution. Wynn v. State, 271 Ga. App. 10, 609 S.E.2d 97 (2004).
Because the state: (1) conceded that the trial court erred by using two felony and three misdemeanor shoplifting convictions; (2) failed to meet the state's burden of proving that the defendant was represented by counsel before pleading guilty to those crimes; and (3) failed to show that the defendant was represented by counsel or waived such a right, on three previous misdemeanor shoplifting convictions, the trial court should not have used the convictions to enhance the defendant's shoplifting conviction into a felony; moreover, the defendant overcame presumption of regularity of the trial court's decision as two of the underlying felonies were the same ones which were ruled inadmissible. Simmons v. State, 278 Ga. App. 372, 629 S.E.2d 86 (2006).
Trial court erred in sentencing the defendant as a recidivist pursuant to O.C.G.A. § 17-10-7(c) because the state did not introduce any evidence that the defendant had previously pled guilty or been convicted of any crime. Dobbs v. State, 302 Ga. App. 628, 691 S.E.2d 387 (2010).
Defendant sentenced to life in prison without parole, under O.C.G.A. §§ 16-13-30(d) and17-10-7(c), based on the defendant's prior convictions stemming from guilty pleas, was not entitled to habeas relief on the basis of the defendant's trial counsel's failure to review the transcripts of the defendant's prior plea colloquies because: (1) no per se rule required counsel to review the transcripts; and (2) counsel otherwise adequately investigated the validity of the prior convictions. Barker v. Barrow, 290 Ga. 711, 723 S.E.2d 905, cert. denied, 568 U.S. 987, 133 S. Ct. 540, 184 L. Ed. 2d 354 (2012).
State did not "use up" prior felony conviction to prove element of crime.
- Trial court's consideration of a prior felony conviction in imposing punishment under O.C.G.A. § 17-10-7(c) was proper because the state did not "use up" evidence of the prior felony conviction to establish a charge of firearm possession by a convicted felon charge; instead, the state only offered evidence of the defendant's previous felony indictment, not the conviction. Thompson v. State, 294 Ga. App. 768, 670 S.E.2d 226 (2008), cert. denied, No. S09C0482, 2009 Ga. LEXIS 252 (Ga. 2009).
First offender conviction had to be violated and adjudication of guilt entered.
- Because it was unclear whether one of the defendant's convictions, which was a first offender conviction pursuant to O.C.G.A. § 42-8-60 et seq., was successfully completed, in which case there was no "conviction" as that term was defined under O.C.G.A. § 16-1-3(4) because there was no adjudication of guilt, or alternatively, whether the first offender sentence was violated and the trial court thereafter entered an adjudication of guilt and a sentence thereon, in which case the conviction could be counted as one of the three felonies for purposes of recidivist sentencing under O.C.G.A. § 17-10-7(c), a remand of the sentencing for further determination was required. Swan v. State, 276 Ga. App. 827, 625 S.E.2d 97 (2005).
Proof of validity of prior guilty plea.
- In a prosecution for rape and aggravated sodomy, proof that the defendant's plea of guilty to possession of cocaine with intent to distribute required sentencing of the defendant as a recidivist. Miller v. State, 214 Ga. App. 393, 448 S.E.2d 20 (1994).
Trial court did not deprive the defendant of due process of law by admitting in evidence the defendant's prior guilty plea so as to make the defendant eligible for a recidivist sentence; even though a transcript of the plea proceeding was not available, the validity of the plea was shown by extrinsic evidence. Nash v. State, 233 Ga. App. 75, 503 S.E.2d 23 (1998), rev'd on other grounds, 271 Ga. 281, 519 S.E.2d 893 (1999).
Defendant was properly sentenced as a recidivist under O.C.G.A. § 17-10-7(c) because the evidence of the defendant's guilty plea in another state indicated that the defendant was represented by counsel when the defendant entered the plea and the defendant produced no evidence that the plea was not valid. Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392 (2004).
Remand for further sentencing proceedings was necessary because the state was not given an opportunity to show that a prior conviction, based on a guilty plea, upon which the state relied during sentencing was constitutional. Grant v. State, 326 Ga. App. 121, 756 S.E.2d 255 (2014).
Certified copy of plea submitted.
- Trial court did not err in admitting the defendant's prior guilty plea to armed robbery because the state tendered a certified copy of the guilty plea during the sentencing hearing and, thus, met the state's initial burden by proving the existence of the prior guilty plea and that the defendant was represented by counsel. Freeman v. State, 244 Ga. App. 393, 535 S.E.2d 349 (2000).
Trial court properly used a prior guilty plea to sentence the defendant as a recidivist when the state presented a certified copy of the plea that was signed and initialed by defense counsel along with a plea hearing transcript; even if the plea hearing transcript was uncertified and unauthenticated, the certified copy of the plea was admissible under former O.C.G.A. § 24-7-20 (see O.C.G.A. § 24-9-920), and the defendant had not produced evidence of invalidity once the fact of conviction was proved and the state showed that the defendant had been represented by counsel. Moorer v. State, 286 Ga. App. 395, 649 S.E.2d 537 (2007), cert. denied, No. S07C1910, 2007 Ga. LEXIS 806 (Ga. 2007).
When the defendant was sentenced as a recidivist under O.C.G.A. § 17-10-7(d), the sentence was properly supported by certified copies of each of the four prior convictions. Hester v. State, 274 Ga. App. 276, 617 S.E.2d 232 (2005).
Trial court did not err in considering the defendant's prior guilty plea in sentencing the defendant as a recidivist after the defendant was convicted of felony theft by taking because the state, by tendering the certified copy of the plea, met the state's initial burden of proving that the defendant had entered the guilty plea. Sheppard v. State, 300 Ga. App. 631, 686 S.E.2d 295 (2009).
State may prove as many prior convictions as have occurred.
- In alleging former conviction or plea of guilty by the defendant of similar offenses, the state is not limited to the alleging or proving of only one. It may allege and prove as many as have in fact occurred, or any portion thereof. Law v. State, 121 Ga. App. 106, 173 S.E.2d 98, appeal dismissed, 226 Ga. 591, 176 S.E.2d 80 (1970).
Convictions on separate counts of the same indictment count as one prior felony for purposes of recidivist sentencing. Fuller v. State, 233 Ga. App. 211, 504 S.E.2d 62 (1998).
Trial court erred in sentencing the defendant under O.C.G.A. § 17-10-7(c) because two of the defendant's prior convictions were pleas that had been consolidated for trial under § 17-10-7(d) and, thus, were deemed to be only one conviction. Stone v. State, 245 Ga. App. 728, 538 S.E.2d 791 (2000).
When the defendant was sentenced as a recidivist under O.C.G.A. § 17-10-7(d), the trial court properly considered two convictions arising from the same crime as one conviction for recidivist sentencing purposes, but the court was not required to consider convictions entered two years apart as one conviction because the probation granted for the earlier offense was revoked on the same day defendant was sentenced on the later offense. Hester v. State, 274 Ga. App. 276, 617 S.E.2d 232 (2005).
Offenses not consolidated for trial.
- Trial court correctly concluded that a defendant's three prior offenses were not consolidated for trial under O.C.G.A. § 17-10-7(d). The three prior crimes involved different victims, and each conviction had a separate case number, indictment, and sentencing order. Barbee v. State, 308 Ga. App. 322, 707 S.E.2d 550 (2011).
Prior felony conviction resulting from guilty verdict.
- Since the defendant was shown to have at least one prior felony conviction resulting from a guilty verdict rather than a guilty plea, and since the defendant was found guilty of another separate felony, it was not error to sentence the defendant as a recidivist pursuant to O.C.G.A. § 17-10-7(a). Cribbs v. State, 204 Ga. App. 109, 418 S.E.2d 405, cert. denied, 204 Ga. App. 921, 418 S.E.2d 405 (1992).
First offender record properly considered.
- Defendant's first offender record was properly considered at the defendant's sentencing hearing and evidence regarding the defendant's underlying behavior in connection with the first offender plea was not required. Williams v. State, 228 Ga. App. 622, 492 S.E.2d 290 (1997).
Admissibility of proof of extraneous crime.
- To be admissible, proof of extraneous crime must tend to establish commission of the crime in question. Kitchens v. State, 113 Ga. App. 663, 149 S.E.2d 373 (1966).
Prior conviction may be used to show motive, scheme, or plan.
- While the primary object of alleging and proving that the defendant, in a trial for larceny (now theft) of an automobile, had been previously convicted of numerous designated felonies and sentenced to confinement and labor in the penitentiary for each of those offenses, may be to make the defendant receive the maximum sentence under the provisions of this section, yet such proof, especially as to the defendant's previous conviction of the larceny of an automobile, is admissible to show motive, scheme, or plan. Weeks v. State, 66 Ga. App. 553, 18 S.E.2d 503 (1942).
If a particular group of tools has been used in a particular way in previous burglaries related in point of time, the evidence may be admissible to show modus operandi, or it may be shown that the tools in question have in fact been used by the defendant in the commission of the crime for the purpose of showing the intent accompanying the possession. Kitchens v. State, 113 Ga. App. 663, 149 S.E.2d 373 (1966).
Effect of written admission of prior conviction.
- Written admission made to the court of the allegation in the indictment of a prior conviction by the defendant does not make it necessary to strike this allegation from the indictment nor make evidence of such fact inadmissible. Berry v. State, 51 Ga. App. 442, 180 S.E. 635 (1935).
If indicted as a recidivist on narcotics offense with prior convictions for nonnarcotics offenses, sentencing under this section was proper. Green v. State, 154 Ga. App. 295, 267 S.E.2d 898 (1980).
If indicted on narcotics charge with a prior narcotics conviction, the specific recidivist statute for narcotics offenders should be applied rather than the general recidivist statute. Green v. State, 154 Ga. App. 295, 267 S.E.2d 898 (1980).
Recidivist sentencing applied in drug possession conviction.
- Since there had been three prior felony convictions, O.C.G.A. § 17-10-7 applied to a sentencing for possession of cocaine. Gray v. State, 254 Ga. App. 487, 562 S.E.2d 712 (2002).
Recidivist sentencing properly applied.
- Trial court did not err in imposing recidivist sentencing because the state's evidence served as sufficient proof of the existence of the defendant's prior guilty pleas and that the defendant was represented by counsel when those pleas were taken. Horne v. State, 318 Ga. App. 484, 733 S.E.2d 487 (2012).
Driving motor vehicle after being declared habitual violator.
- Defendant could not be sentenced under O.C.G.A. § 17-10-7(b) since the defendant's habitual violator convictions did not fall within the definition of "serious violent felony." Ball v. State, 233 Ga. App. 859, 506 S.E.2d 149 (1998).
Identity of names in prior and present indictments is prima facie proof.
- Identity of names shown in two previous indictments with the name in the present indictment was sufficient in the instant case to establish prima facie that the defendant was the same man previously charged and sentenced. Timbs v. State, 71 Ga. App. 141, 30 S.E.2d 290 (1944).
Defendant may rebut evidence of previous conviction.
- In a prosecution for a second felonious offense, if record evidence of a former conviction is introduced showing one of the same name as that of the defendant on trial, the defendant has the opportunity of showing that the defendant is not the individual named in the previous indictments, and until the defendant proves otherwise, the evidence would be taken as proof that the defendant is the person named in the previous indictments. It is not conclusive, but is prima facie evidence of a former conviction. Timbs v. State, 71 Ga. App. 141, 30 S.E.2d 290 (1944).
If defendant does not rebut such identity, it is sufficiently established.
- If the defendant is being prosecuted under a certain name, and the record evidence of a former conviction shows an individual of the same name to have been formerly convicted and sentenced in the same court for two felonies committed in the same county, and the defendant in the defendant's statement to the jury does not deny that the defendant is the person named in the former sentences, and there is no evidence to rebut this prima facie proof by the record evidence of identity, and this record evidence is undisputed, the identity of the defendant as the person named in the former sentences was thus sufficiently established. Timbs v. State, 71 Ga. App. 141, 30 S.E.2d 290 (1944).
Because the defendant did not present any evidence that one of the three prior convictions presented by the state for sentencing purposes was a first-offender sentence, the defendant was properly sentenced as a recidivist. Swan v. State, 275 Ga. App. 137, 619 S.E.2d 809 (2005).
Concordance of name.
- In the absence of any denial by the defendant and no proof to the contrary, concordance of name is sufficient to show that the defendant and the individual previously convicted are the same person. Mincey v. State, 186 Ga. App. 839, 368 S.E.2d 796 (1988).
Judge may inspect record and act on own knowledge as to identity.
- After a second conviction, the judge may inspect the record of the former trial, act on the judge's own knowledge, or hear evidence to satisfy the judge of the identity of the accused. McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903).
Power of trial judge to sentence generally.- Supreme Court of Georgia held that the trial court was authorized to impose the sentences the court did even without taking into consideration the state's request for recidivist punishment and the evidence presented in support of that request and the court was permitted by other statutes to impose the sentences that the court did, even if the trial court labored under the mistaken impression that the appellant was not eligible for parole, which amounted to a mistake of law, but not a void sentence. Marshall v. State, Ga. , S.E.2d (Sept. 8, 2020).
Conviction with maximum sentence invalid if indictment silent as to prior convictions.
- Conviction and sentence of an accused given the maximum punishment is illegal if the indictment contains no reference to the defendant's former convictions and sentences. Harris v. State, 40 Ga. App. 228, 149 S.E. 153 (1929).
Notice of prior offenses used for recidivist purposes.
- Although it is not essential that the indictment set forth the prior offenses, if the indictment does not set forth prior offenses it is necessary that the record contain an "affirmative notice to defendant that his prior felony offenses would be used against him for recidivist purposes during sentencing." Ross v. State, 210 Ga. App. 455, 436 S.E.2d 496 (1993).
Defendant was not improperly sentenced under the general recidivist statute, O.C.G.A. § 17-10-7(c), as the defendant was served with notice that certified copies of the defendant's three prior felony convictions would be used against the defendant in sentencing as required by O.C.G.A. § 17-10-2(a); once the convictions were offered, the trial court was authorized to sentence the defendant under § 17-10-7. Walker v. State, 268 Ga. App. 669, 602 S.E.2d 351 (2004).
Trial court did not err in finding that the state provided sufficient notice of the state's intent to seek recidivist punishment because the state first provided the defendant with notice of the state's intent to seek recidivist punishment in January 2014; and the amended notice from June 2016 was provided well before the February 10, 2017 hearing, at which the defendant ultimately pled guilty, and the state provided specific details regarding the defendant's previous three convictions that the state intended to use in aggravation of punishment, including the fact that those offenses were considered felonies in their respective jurisdictions and would similarly be considered felonies in Georgia. Nordahl v. State, 344 Ga. App. 686, 811 S.E.2d 465 (2018), aff'd, 306 Ga. 15, 829 S.E.2d 99 (2019).
Recidivism indictment which contains a defect in the allegation of prior convictions is not rendered void by such defect, assuming that the defect was not brought to the attention of the jury during the guilt-innocence phase of the trial. Wooten v. State, 160 Ga. App. 747, 288 S.E.2d 94 (1981).
Prior convictions as a separate "count."
- Placing a defendant's prior convictions in an indictment pursuant to O.C.G.A. § 17-10-7 did not constitute a separate and distinct "count" of the indictment so as to charge the defendant with an offense. Parrish v. State, 160 Ga. App. 601, 287 S.E.2d 603 (1981).
Prior federal conviction for receiving, possessing, and concealing explosives, knowing the explosives have been stolen, was not necessarily conduct which would be considered felonious under the laws of Georgia, and that conviction cannot be considered a prior conviction within the meaning of O.C.G.A. § 17-10-7(b). Wallace v. State, 175 Ga. App. 685, 333 S.E.2d 874 (1985).
Prior out-of-state convictions.
- Although the language of a Florida indictment did not track Georgia's armed robbery statute, the Florida indictment was sufficient to prove that the defendant was convicted of two offenses in Florida which would have each been the serious violent felony of armed robbery had the offenses been committed in Georgia. Smith v. State, 241 Ga. App. 770, 527 S.E.2d 608 (2000).
There was no merit to the defendant's contention that the trial court erred in sentencing the defendant to life in prison without parole under the recidivist provisions of O.C.G.A. § 17-10-7(b)(2) since the defendant was convicted of a serious violent felony, armed robbery, and the state produced evidence that the defendant had previously been convicted in Florida of the offense of armed robbery, which, if committed in Georgia, would also have been a serious violent felony as defined in O.C.G.A. § 17-10-6.1(a). Cordy v. State, 257 Ga. App. 726, 572 S.E.2d 73 (2002).
Fla. Stat. Ch. 812.13(2)(a) specifically provided that armed robbery was committed while robbing using "force, violence, assault," or intimidation and carrying a firearm or other deadly weapon, so the defendant's conviction of this crime, even though it was noted that the defendant did not carry the firearm involved in the offense, adequately supported the imposition of a life sentence without parole under O.C.G.A. § 17-10-7(b)(2) for defendant's subsequent offense. King v. State, 258 Ga. App. 872, 575 S.E.2d 679 (2002).
Defendant was properly sentenced as a recidivist under O.C.G.A. § 17-10-7(c) because it was shown that the defendant pled guilty in Alabama to theft of an automobile, and, under Georgia law, theft of a motor vehicle was a felony regardless of the value of the vehicle under O.C.G.A. § 16-8-12(a)(5)(A). Johnson v. State, 268 Ga. App. 1, 601 S.E.2d 392 (2004).
Defendant's case was remanded for resentencing after a conviction for criminal attempt to manufacture methamphetamine because the trial court considered an uncertified Arkansas docket sheet in aggravation of sentence and a Tennessee conviction that might not qualify as a prior felony in Georgia under the recidivist statute. Elliot v. State, 274 Ga. App. 73, 616 S.E.2d 844 (2005).
Because the state met the state's statutory burden of proving that the defendant had at least three prior out-of-state convictions for offenses that would have constituted felonies under Georgia law, the trial court was entitled to sentence the defendant as a fourth-time felony offender under O.C.G.A. § 17-10-7(c). Nelson v. State, 277 Ga. App. 92, 625 S.E.2d 465 (2005).
Trial court did not err in finding that the defendant's two Oklahoma convictions would have constituted felonies under Georgia law for purposes of sentencing under O.C.G.A. § 17-10-7(a); the state introduced copies of the applicable Oklahoma statutes and there was no basis for concluding that the trial judge was required to review certified copies of the Oklahoma statutes in order to reach the court's conclusions. Johnson v. State, 281 Ga. App. 7, 635 S.E.2d 278 (2006).
With regard to a defendant's conviction for armed robbery and other crimes, the trial court did not err by sentencing the defendant under O.C.G.A. § 17-10-7(b) based on the existence of an out-of-state robbery with a dangerous weapon conviction because, for sentencing purposes, Georgia defines armed robbery as a serious violent felony and the out-of-state conviction for the crime of robbery with a dangerous weapon was properly treated as armed robbery under Georgia law. Grant v. State, 289 Ga. App. 230, 656 S.E.2d 873 (2008).
Defense counsel was not ineffective for failing to object to the trial court's use of prior felonies defendant committed in California to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(c), as the elements of Cal. Health & Safety Code §§ 11054(f), 11350(a) (possession of cocaine) were sufficiently similar to those of O.C.G.A. §§ 16-13-26(1)(D),16-13-30(c); and the elements of Cal. Penal. Code § 211 (robbery) were sufficiently similar to those of O.C.G.A. § 16-8-40. Williams v. State, 296 Ga. App. 270, 674 S.E.2d 115 (2009).
Trial court did not err in sentencing the defendant as a recidivist because the records of an Alabama conviction showed that the defendant pled guilty to the offense of burglary in the third degree and received a sentence of four years imprisonment; the elements of the crime as charged in the Alabama indictment were similar to the elements required to commit the crime under O.C.G.A. § 16-7-1. Wells v. State, 313 Ga. App. 528, 722 S.E.2d 133 (2012).
Trial court properly imposed recidivist punishment pursuant to O.C.G.A. § 17-10-7 based on the defendant's prior federal conviction for conspiracy to transport stolen goods in interstate commerce, 18 U.S.C. §§ 371 and 2314, because the conviction's elements matched felony conspiracy to commit a crime under Georgia law as defined in O.C.G.A. § 16-4-8. Nordahl v. State, 306 Ga. 15, 829 S.E.2d 99 (2019).
Offenses heard on same day not "consolidated for trial."
- When previous offenses were merely heard on the same day for convenience or efficiency, but were not in fact "consolidated for trial," the offenses constituted separate offenses for purposes of O.C.G.A. § 17-10-7(c), especially if a separate indictment was charged for each of the offenses and a separate sentence was handed down for each offense. Clarke v. State, 167 Ga. App. 402, 306 S.E.2d 702 (1983).
Prior convictions were not consolidated for trial under O.C.G.A. § 17-10-7(c) although the convictions involved separate indictments and pleas of guilty before the same judge on the same date, concurrent sentences in separate orders, and similar but separate probation orders. Moore v. State, 169 Ga. App. 24, 311 S.E.2d 226 (1983).
Since two convictions were the result of guilty pleas entered on the same date to two separate accusations, since the defendant was sentenced for each conviction, sentences to be served concurrently, and since a separate order of sentence was entered on each accusation, the trial court did not err in concluding that those two prior convictions had not been consolidated for trial within the meaning of O.C.G.A. § 17-10-7(c). Parker v. State, 170 Ga. App. 295, 316 S.E.2d 855 (1984), overruled on other grounds, Darty v. State, 188 Ga. App. 447, 373 S.E.2d 389 (1988).
Concurrent sentence entered on same day not consolidated.
- Since the record reflected that the defendant was found guilty of armed robbery and pled guilty to possessing heroin on two separate dates and all three convictions were the result of separate indictments and a separate order of sentence was entered on each indictment, the fact that the sentences were entered on the same day and that the sentences on the possession charges ran concurrent with the armed robbery sentence did not require the conclusion that the three prior convictions had been "consolidated for trial" within the meaning of O.C.G.A. § 17-10-7. Philmore v. State, 263 Ga. 67, 428 S.E.2d 329 (1993); Mims v. State, 225 Ga. App. 331, 484 S.E.2d 37 (1997).
Although the latter two of a defendant's prior felonies were entered on the same day and resulted in the imposition of concurrent terms of imprisonment, as the sentences were based on burglaries that occurred on different dates and resulted in separate indictments against the defendant, the sentences were not deemed consolidated for trial under O.C.G.A. § 17-10-7(d), such that the offenses counted as separate felony offenses for purposes of recidivist sentencing under § 17-10-7(c). McSears v. State, 292 Ga. App. 804, 665 S.E.2d 890 (2008).
O.C.G.A. § 17-10-7(d) did not require the imposition of concurrent sentences for a defendant's convictions of armed robbery and aggravated assault. O.C.G.A. § 16-1-7 authorized separate sentences for the two crimes charged in the same prosecution because the crimes were not included offenses. Redden v. State, 294 Ga. App. 879, 670 S.E.2d 552 (2008).
State need not prove that defendant's prior convictions are valid in order merely to allege the convictions in the indictment. Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981).
State must prove prior convictions at sentencing hearing. Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981).
Fact of prior conviction triggers section.
- It is the fact of the prior conviction, not where or when the conviction occurred, that triggers O.C.G.A. § 17-10-7. Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981).
Offenses occurring after charged offense.
- Sentence of the defendant as a recidivist was not authorized since the offenses on which the state relied occurred after the offenses for which the defendant was being sentenced. Covington v. State, 226 Ga. App. 484, 486 S.E.2d 706 (1997).
Time for defendant to challenge validity of convictions on which recidivism charge is made is when state attempts to prove the convictions at sentencing. Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981).
Defendant's failure to furnish transcript of prior proceeding.
- If the defendant contended that the evidence submitted in assessing punishment as a recidivist was insufficient in light of the state's use of "uncounselled" convictions from another county, inasmuch as it was incumbent upon the defendant to provide a transcript of the proceeding (Chancery v. State, 256 Ga. 415, 349 S.E.2d 717 (1986)) and none was filed, the Court of Appeals had to assume that the evidence presented at the sentencing hearing supported the sentence imposed by the trial court. Midura v. State, 183 Ga. App. 523, 359 S.E.2d 416 (1987).
Use of prior convictions for guilt innocence phase and sentencing phase.
- When the defendant was convicted of aggravated assault, the defendant's prior convictions for aggravated assault and criminal damage to property, which had been used during the guilt-innocence phase of the defendant's trial for impeachment purposes, could be used at sentencing because a repeat offender convicted of aggravated assault could be sentenced as a recidivist, under O.C.G.A. § 17-10-7(a), and there was no restriction in the aggravated assault statute, O.C.G.A. § 16-5-21, that limited the use of prior convictions to the guilt-innocence phase of trial such that the sentences could not be used again at the sentencing phase of trial. Carswell v. State, 263 Ga. App. 833, 589 S.E.2d 605 (2003).
Trial court did not err in considering the defendant's earlier conviction for driving under the influence at sentencing after the court had already considered the same conviction during the guilt-innocence phase of the defendant's trial; nothing in O.C.G.A. § 17-10-7 prohibits prior convictions used in the guilt-innocence phase of trial from being used again at sentencing. Morgan v. State, 277 Ga. App. 670, 627 S.E.2d 413 (2006).
Because the defendant was acquitted of possession of a firearm by a convicted felon, two prior felony convictions were not used both to support a conviction on that charge and to enhance the defendant's burglary sentence under O.C.G.A. § 17-10-7(c). Raymond v. State, 298 Ga. App. 549, 680 S.E.2d 598 (2009), cert. denied, No. S09C1791, 2010 Ga. LEXIS 47 (Ga. 2010).
Defendant waived the defendant's objection to the trial court's consideration of a particular conviction in aggravation of sentencing under the recidivist statute, O.C.G.A. § 17-10-7, when the state had already used that conviction in support of the charge of possession of a firearm by a convicted felon because the defendant failed to object at sentencing to the exhibit containing the conviction. Thomas v. State, 305 Ga. App. 801, 701 S.E.2d 202 (2010).
Failure to object to the state's evidence of prior convictions.
- Defendant's claim that the defendant should not have been sentenced as a recidivist under O.C.G.A. § 17-10-7(c) was rejected on appeal because defense counsel failed to object to the admissibility of the defendant's prior felony convictions at the presentencing hearing. Williams v. State, 301 Ga. App. 731, 688 S.E.2d 650 (2009).
Sentence was not enhanced, nor was defendant sentenced as a recidivist.
- With regard to a defendant's conviction for trafficking in cocaine, the trial court did not improperly consider similar transaction evidence of being arrested for trafficking in cocaine in 2004, as well as convictions that were reversed on appeal, in aggravation of the defendant's sentence because, although the state filed a notice of intent to seek recidivist punishment, the state did not offer certified copies of any convictions in evidence at sentencing and the defendant was not sentenced as a recidivist. Celestin v. State, 296 Ga. App. 727, 675 S.E.2d 480 (2009), cert. denied, No. S09C1200, 2009 Ga. LEXIS 340 (Ga. 2009).
Disclosure of Prior Convictions to Jury
Prior convictions must not be disclosed in first phase.
- Under the two-step procedure, one must be indicted as a recidivist in order to impose recidivist punishment, but the recidivism of the accused must not be disclosed during the first phase of the trial, and may only be disclosed after conviction at the second phase of the trial. Making such a disclosure without a waiver during the first phase of the trial is reversible error. Bennett v. State, 132 Ga. App. 397, 208 S.E.2d 181 (1974).
Prior convictions properly admitted for both impeachment and sentencing purposes.
- Defendant's claim on appeal that the trial court erred in admitting prior convictions for aggravated assault and possession of a firearm during the commission of a felony for the purpose of sentencing as a recidivist, pursuant to O.C.G.A. § 17-10-7(a), as the state "used up" the evidence of said prior convictions by introducing the convictions for impeachment purposes during the guilt-innocence phase of the trial, was rejected, as nothing prevented the use of the defendant's prior convictions for both impeachment and sentencing. Newsome v. State, 289 Ga. App. 590, 657 S.E.2d 540 (2008), cert. denied, No. S08C1042, 2008 Ga. LEXIS 494 (Ga. 2008).
Reading indictment listing prior convictions valid.
- Reading of an indictment which lists prior convictions of the accused, pursuant to this section, did not render the accused's conviction void. Willis v. Smith, 434 F.2d 1029 (5th Cir. 1970), cert. denied, 403 U.S. 932, 91 S. Ct. 2261, 29 L. Ed. 2d 711 (1971).
Absent objection.
- Practice of including prior convictions in the indictment and reading the convictions to the jury before the determination of the issue of guilt or innocence in the crime charged, pursuant to this section, was not reversible error if there is no objection to the introduction of such evidence. Almond v. State, 128 Ga. App. 758, 197 S.E.2d 836 (1973).
Prior convictions must be read to sentence under section.
- In order to sentence a prisoner according to this section, the prior convictions relied on must be placed in the indictment and read to the jury before the principal issue of guilt or innocence is determined. Landers v. Smith, 226 Ga. 274, 174 S.E.2d 427 (1970).
State's interests outweigh defendant's as to reading prior crimes to jury.
- Under this section, the jury learns of prior crimes committed by the defendant, but the conceded possibility of prejudice is believed to be outweighed by the validity of the state's purpose in permitting introduction of the evidence. Winston v. State, 186 Ga. 573, 198 S.E. 667 (1938).
Defendants' interests are protected by limiting instructions, and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. Cook v. Smith, 303 F. Supp. 90 (S.D. Ga. 1969), aff'd, 427 F.2d 1172 (5th Cir. 1970).
Use of term "recidivist."
- Trial court should not have referred to the recidivist count of the indictment when the court administered the oath to the prospective jurors. However, because the court only said the word "recidivist" (the court did not read that count of the indictment), and because the defendant's prior record was introduced in evidence to prove another charge (i.e., possession of a firearm by a convicted felon), the brief reference to the recidivist count was harmless error. Holiday v. State, 258 Ga. 393, 369 S.E.2d 241, cert. denied, 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988).
Probation or Suspension
Discussions in court as to parole.
- Ability or inability to obtain early release does not relate to the defendant's character, the defendant's prior record, or circumstances of the defendant's offense; thus, the policy forbidding argument about such matters does not run afoul of either U.S. Const., amend. 8 or 14, and the trial court did not err in refusing to allow such argument. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).
Trial court has authority to suspend or probate sentence imposed under this section. Cofer v. Hawthorne, 154 Ga. App. 875, 270 S.E.2d 84 (1980).
Former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7) did not compel a maximum sentence in confinement for second offenders, but gave the trial judge discretion to probate or suspend the maximum sentence pursuant to former Code 1933, § 27-2502 (see O.C.G.A. § 17-10-1). Davis v. State, 154 Ga. App. 803, 269 S.E.2d 874 (1980).
Although O.C.G.A. § 17-10-7 mandates that a second offender must be sentenced to the maximum punishment for the offense of which convicted, there is no limitation on the trial court's authority under O.C.G.A. § 17-10-1 to grant probation of such a sentence. Jackson v. State, 158 Ga. App. 530, 281 S.E.2d 252 (1981); Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983).
Court has discretion to probate or suspend.
- Although O.C.G.A. § 17-10-7(c) prohibits parole, the statute does not take away the discretion given to the trial court by O.C.G.A. § 17-10-7(a) to probate or suspend part of a sentence. Muhammad v. State, 242 Ga. App. 540, 529 S.E.2d 418 (2000).
Although O.C.G.A. § 17-10-7(c) prohibited parole, the statute did not dispense with the trial court's discretion to probate or suspend part of the defendant's sentence under O.C.G.A. § 17-10-7(a); therefore, the trial court was within the court's discretion to suspend a portion of the defendant's 20-year sentence. Hill v. State, 272 Ga. App. 280, 612 S.E.2d 92 (2005).
Since the defendant had prior felonies in addition to two prior burglary convictions, the defendant was not subject to the exclusive sentencing provisions of O.C.G.A. § 16-7-1(b) after being convicted of a third felony burglary; the additional felonies subjected the defendant to the general recidivist provisions of O.C.G.A. § 17-10-7(a), which gave the sentencing court discretion to suspend a portion of the sentence, and the state's appeal of the defendant's 20 year sentence, which included suspension of 12 years of the sentence after the defendant served 8 years, was rejected. State v. Chambers, 275 Ga. App. 666, 621 S.E.2d 588 (2005).
Since criminal statutes construed against state and in favor of liberty.
- Criminal statutes must be strictly construed against the state and liberally in favor of human liberty. If a statute increasing a penalty is capable of two constructions, the statute should be construed so as to favor life and liberty. This being so, former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7) did not compel a maximum sentence in confinement for second offenders but gives the trial judge discretion to probate or suspend the maximum sentence pursuant to former Code 1933, § 27-2502 (see O.C.G.A. § 17-10-1). Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979).
Intent was to permit such suspension or probation.
- Language of this section indicated that the General Assembly did not intend that a conviction of a second offense should result in a sentence that could not be suspended or probated. Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979).
Trial judge has no discretion to probate or suspend any portion of a life sentence. Wallace v. State, 175 Ga. App. 685, 333 S.E.2d 874 (1985).
Construction of subsections (a) and (c) regarding probation.
- When the prosecutor informed the court that the defendant should be sentenced under "subsection (c)," the prosecutor was referring to O.C.G.A. § 17-10-7(c); however, the language of that subsection must be read along with O.C.G.A. § 17-10-7(a), which requires a trial court to impose the maximum sentence when an individual is convicted of a second "felony punishable by confinement in a penal institution" and further provides, however, that "the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense." Although subsection (c) prohibits parole, the subsection does not dispense with the trial court's discretion to probate or suspend part of a sentence under O.C.G.A. § 17-10-7(a). However, the defendant has not shown that the court failed to properly construe the law after the court reviewed the defendants' extensive criminal record and drug involvement and noted that probation would be an ineffective method of punishment and sentenced the defendant to 25 years. Pritchett v. State, 267 Ga. App. 303, 599 S.E.2d 291 (2004).
Discretion properly exercised.
- If trial court, knowing that the court was required to impose maximum sentence, nevertheless asked the defendant if the defendant had any evidence to offer in mitigation, the court demonstrated that the court properly exercised the court's discretion to probate or suspend a portion of the recidivist sentence. Cox v. State, 205 Ga. App. 375, 422 S.E.2d 68 (1992).
Fact that the trial court did not probate part of the defendant's sentence was not dispositive since the court never indicated that the court could not consider probation after hearing the defendant's argument and citations at the resentencing hearing. Hunter v. State, 237 Ga. App. 803, 517 S.E.2d 534 (1999).
Discretion exceeded with probation for convicted hijacker.
- Defendant convicted under the hijacking statute, O.C.G.A. § 16-5-44.1, who was originally sentenced to the maximum 20 years under the recidivist provisions of O.C.G.A. § 17-10-7, with ten of the 20 years to be served on probation, was properly re-sentenced because § 16-5-44.1 provides that the prescribed punishment "shall not be deferred, suspended, or probated." Stephens v. State, 245 Ga. App. 823, 538 S.E.2d 882 (2000).
Discretion exceeded.
- Since the defendant was convicted of prior felonies and the offense of rape was also a felony under O.C.G.A. § 16-6-1(b), the trial court's imposition of a suspended sentence under O.C.G.A. § 17-10-1 was void because the trial court was required to give the defendant a life sentence under O.C.G.A. § 17-10-7(a). State v. Scott, 265 Ga. App. 387, 593 S.E.2d 923 (2004).
Because the trial court erroneously concluded that the court was required to sentence the defendant, a fifth-time recidivist, to the maximum of 20 years, and that under O.C.G.A. § 17-10-7(c) the court had no discretion to probate or suspend any portion of that sentence, resentencing was warranted. Page v. State, 287 Ga. App. 182, 651 S.E.2d 131 (2007).
Defendant's sentence for felony fleeing and attempting to elude was vacated because the trial court incorrectly determined that the recidivist punishment statute did not apply since the defendant had been confined in a prior case to a penal institution as the recidivist punishment statute did not mandate that the defendant's entire sentence be served in confinement. State v. Yohman, 348 Ga. App. 378, 823 S.E.2d 57 (2019).
Remand to consider probating portion of mandatory sentence.
- Since the trial court did not exercise the court's discretion to consider probating the appellant's sentence for theft by taking, the sentence for that offense was reversed and remanded so the trial court could determine whether any portion of the appellant's mandatory sentence should be probated. Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983).
Probated sentence may be used to sentence defendant as recidivist.
- Fact that part of the defendant's sentence on a prior felony was probated did not mean that the previous conviction could not be used to sentence the defendant as a recidivist. Johnson v. State, 272 Ga. App. 294, 612 S.E.2d 29 (2005).
Fourth-offender recidivists.
- There is no limitation on the trial court's authority under O.C.G.A. § 17-10-1 to grant probation of sentence to a fourth offender recidivist who under O.C.G.A. § 17-10-7 is not eligible for parole until the maximum sentence has been served since probation is not parole. Brooks v. State, 165 Ga. App. 115, 299 S.E.2d 167 (1983); State v. Carter, 175 Ga. App. 38, 332 S.E.2d 349 (1985).
Banishing defendant from county.
- Even though the defendant was sentenced under O.C.G.A. § 17-10-7(c), requiring that the defendant serve an entire 30-year sentence without the possibility of parole, imposition of a special condition of probation banishing the defendant from certain counties for 30 years was not unreasonable. Adams v. State, 241 Ga. App. 810, 527 S.E.2d 911 (2000).
Sentencing when offenses merged.
- Trial court vacated the conviction and sentence for voluntary manslaughter recognizing correctly that the voluntary manslaughter should have merged into the felony murder. The only sentence that survives is the sentence for murder, and the trial court never pronounced a sentence pursuant to O.C.G.A. § 17-10-7(c) for that crime, nor does the written sentencing order reflect that the defendant is parole ineligible. Grimes v. State, 293 Ga. 559, 748 S.E.2d 441 (2013).
OPINIONS OF THE ATTORNEY GENERAL
Constitutional limitations on power to parole.
- As of January 1, 1995, there have been placed additional constitutional limitations on the power of the State Board of Pardons and Paroles to parole. The limitations include the inability to parole during the mandatory minimum sentence for the seven serious violent felonies set out in O.C.G.A. § 17-10-6.1, the inability to parole for sentences of life without parole as set out in O.C.G.A. §§ 17-10-7(b)(2) and17-10-16, and the inability to parole for felony recidivists who are convicted for a fourth or subsequent such offense. Other felons and misdemeanants are required to serve the minimum time prescribed in O.C.G.A. § 42-9-45(b), subject to the authority reserved by statute to the board in O.C.G.A. § 42-9-46 to consider for clemency upon complying with certain notice procedures. 1995 Op. Att'y Gen. No. 95-4.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21A Am. Jur. 2d, Criminal Law, §§ 822 et seq., 830 et seq. 59 Am. Jur. 2d, Pardon and Parole, §§ 80 et seq., 98 et seq., 119 et seq.
C.J.S.- 24 C.J.S., Criminal Procedure and the Rights of the Accused, § 2436 et seq.
ALR.
- Constitutionality and construction of statute enhancing penalty for second or subsequent offense, 58 A.L.R. 20; 82 A.L.R. 345; 116 A.L.R. 209; 132 A.L.R. 91; 139 A.L.R. 673.
Overemphasis in proof of former conviction in connection with habitual criminal law, or unnecessary introduction of evidence in that regard, as prejudicial to accused, 144 A.L.R. 240.
What constitutes former "conviction" within statute enhancing penalty for second or subsequent offense, 5 A.L.R.2d 1080.
Determination of character of former crime as a felony, so as to warrant punishment of an accused as a second offender, 19 A.L.R.2d 227.
Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes, 24 A.L.R.2d 1247.
Pardon as affecting consideration of earlier conviction in applying habitual criminal statute, 31 A.L.R.2d 1186.
Form and sufficiency of allegations as to time, place, or court of prior offenses or convictions, under habitual criminal act or statute enhancing punishment for repeated offenses, 80 A.L.R.2d 1196.
What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.
Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.
Validity, construction, and application of concurrent-sentence doctrine - state cases, 56 A.L.R.5th 385.
Pardoned or expunged conviction as "prior offense" under state statute or regulation enhancing punishment for subsequent conviction, 97 A.L.R.5th 293.
Construction and application of enhanced sentencing provision of Armed Career Criminal Act (ACCA), 18 U.S.C.A. § 924(e) - United States Supreme Court cases, 67 A.L.R. Fed. 2d 1.