Shirley Stillwell appeals from her conviction of attempted shoplifting contending that the trial court erred in sentencing her to serve three months in confinement followed by nine months on probation. Held:
Appellant contends that the trial court erred in ruling that a defendant in a misdemeanor criminal prosecution is entitled to counsel only where the defendant is sentenced to actual imprisonment. This ruling is correct. Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972); Scott v. Illinois, 440 U. S. 367 (99 SC 1158, 59 LE2d 383) (1979); Houser v. State, 234 Ga. 209 (214 SE2d 893) (1975)
The sole question for decision, therefore, is whether the court erred in considering the defendant's prior misdemeanor convictions in imposing sentence. This court held in Davis v. State, 136 Ga. App. 749
, 753 (222 SE2d 188
) (1975), that "[i]n Houser v. State, 234 Ga. 209
, 214 (15) (214 SE2d 893
), the Supreme Court extended the right-to-counsel ruling of Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) to prior misdemeanor convictions introduced during the sentencing phase to increase punishment. Under that ruling the admission of the pleas was error." An examination of the record in the Davis case shows that the defendant's prior misdemeanor conviction (where he entered a guilty plea without benefit of counsel) was for criminal trespass and he received twelve months to serve. Accord, Dent v. State, 136 Ga. App. 366 (221 SE2d 228) (1975)
where the defendant had entered several prior guilty pleas to misdemeanors and was sentenced to serve six months for one offense and twelve months for each of the other two offenses.
Code Ann. 26-1802.1 (Ga. L. 1978, pp. 2257, 2258), theft by shoplifting, provides: "(b) (1) A person convicted of the crime of theft by shoplifting, as provided in subsection (a) above, when the property which was the subject of the theft is $100 or less in value, shall be punished as for a misdemeanor: Provided, however, that (A) upon conviction of a second such offense, in addition to or in lieu of any imprisonment which might be imposed, the defendant shall be fined not less than $250 and such fine shall not be suspended or probated; (B) upon conviction of a third such offense, in addition or in lieu of any fine which might be imposed, the defendant shall be punished by imprisonment for not less than 30 days and such sentence of imprisonment shall not be suspended, probated, deferred or withheld; (C) upon conviction of a fourth or subsequent such offense, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years and the first year of such sentence shall not be suspended, probated, deferred or withheld."
In the present case, it is contended the defendant was convicted of her fourth offense, and the court sentenced and punished her under an enhancement statute under subsection (b) (1) (B) above. While Baldasar v. Illinois, supra, is dealing with a situation almost analogous to subsection (b) (1) (C) above, it cannot be said here that the defendant's prior convictions were considered to enhance her sentence to a mandatory sentence of imprisonment. Code Ann. 26-1802.1 is applicable only upon conviction of the completed crime of shoplifting and does not provide punishment for the conviction of criminal attempt. The defendant was found guilty of "attempted shoplifting" and sentenced to serve three months in confinement followed by nine months on probation. A person convicted of criminal attempt to commit a misdemeanor shall be punished as for a misdemeanor. Code Ann. 26-1006. The sentence given defendant did not exceed that which could have been imposed upon a first-time misdemeanor offender.