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Lawskills.com Georgia Caselaw
THE STATE v. CAIN.
A01A1920.
ANDREWS, Presiding Judge.
Burglary. DeKalb Superior Court. Before Judge Becker.
The issue raised in this appeal is whether the trial court erred in probating a portion of Kenneth Cain's sentence after Cain pled guilty to one count of burglary. The State argues on appeal that because this was Cain's second burglary conviction, the trial judge did not have discretion to probate a portion of his sentence. We agree and vacate the sentence.
OCGA 16-7-1 (b) provides:
Here, in spite of the clear wording of the statute, the court sentenced Cain to two years to serve eight months with the rest probated. Although there is no transcript of the sentencing, the State's brief says that the trial court relied on Knight v. State, 243 Ga. 770 (257 SE2d 182) (1979), as authority for probating a portion of the sentence. But, Knight interprets the Habitual Offender Act, OCGA 17-10-7 (Code Ann. 27-2511), not OCGA 16-7-1. Moreover, because specific sentencing provisions such as OCGA 16-7-1 (b) prevail over the general recidivist statute at OCGA 17-10-7, "the general recidivist scheme of OCGA 17-10-7 will not apply to multiple or repeat convictions under OCGA 16-7-1 (a) because OCGA 16-7-1 (b) does not contemplate or permit the applicability of OCGA 17-10-7." Norwood v. State, 249 Ga. App. 507, 508-509 (2) (548 SE2d 478) (2001) (citing Mann v. State, 273 Ga. 366, 368 (541 SE2d 645) (2001)).
In any event, Cain does not argue on appeal that the court had discretion to probate a portion of his sentence. Rather, he claims that the State must show proof of the prior conviction before it can request recidivist punishment for the present offense. Cain cites to Nash v. State, 271 Ga. 281, 284-285 (519 SE2d 893) (1999), as authority for this claim. But, Nash is not on point and provides no support for his argument.
The record shows that the State served Cain with a list of evidence in aggravation of offense. The transcripts show that at the sentencing hearings, defense counsel never objected to any of the listed offenses or argued that the State must introduce the prior convictions into evidence.
"No requirement exists under Georgia law which would limit the state to a single means of proving prior convictions of a criminal defendant in order to have the recidivism statute applied to the sentencing of the defendant." Tankersley v. State, 155 Ga. App. 917, 922 (14) (273 SE2d 862) (1980). Moreover, in a case directly on point, this Court has held that when no objection to the form of the evidence of the prior conviction was made at the presentence hearing, the issue was not preserved for review on appeal. Walker v. State, 204 Ga. App. 269 (419 SE2d 542) (1992).
Accordingly, the trial court had no discretion to probate any of Cain's sentence under OCGA 16-7-1, and therefore we vacate the sentence and remand this case to the trial court for resentencing.
Howard A. Becker, for appellee.
J. Tom Morgan, District Attorney, Benjamin M. First, Alison T. Burleson, Assistant District Attorneys, for appellant.
DECIDED DECEMBER 19, 2001.
Thursday May 21 01:34 EDT


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