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Lawskills.com Georgia Caselaw
JAMES v. THE STATE.
A93A0776.
POPE, Chief Judge.
Drug violation. Washington Superior Court. Before Judge McMillan.
Defendant was convicted of selling cocaine in violation of the Georgia Controlled Substances Act, and pursuant to OCGA 16-1 3-30 (d), sentenced to life in prison. He appeals following the denial of his motion for new trial.
1. Contrary to defendant's first enumeration of error, the trial judge properly exercised his discretion in replacing one of the selected jurors in this case with an alternate. The record shows that the juror informed the court, outside the presence of the other jurors, that she had taken offense at the testimony of a witness for the State, who testified he had seen the juror in the presence of drug dealers while working undercover. The juror told the court she was offended by being placed in the company of drug dealers and asked to be excused. Upon further questioning the juror stated that the witness had lied about her associations with drug dealers and that because this statement by the witness was untruthful, she could not believe any other testimony of the witness. The trial court clarified with the juror that she was requesting to be excused because she could no longer be fair and impartial in her deliberations. Considering the foregoing, we find no reversible error resulting from the discharge and replacement of the juror in this case. Payne v. State, 195 Ga. App. 523, 524 (2) (394 SE2d 781) (1990); Neal v. State, 160 Ga. App. 834 (2) (288 SE2d 241) (1982); OCGA 15-12-172. Consequently, this enumeration is without merit.
2. Defendant also contends the trial court should not have considered his prior conviction for the sale of cocaine in imposing sentence pursuant to OCGA 16-13-30 (d) because such prior conviction resulted from a plea of nolo contendere. However, this court previously has sanctioned the use of convictions resulting from pleas of nolo contendere in sentencing under recidivist statutes. Miller v. State, 162 Ga. App. 730 (4) (b) (292 SE2d 102) (1982). See also OCGA 17-10-2 (a). We thus find no merit to this enumeration.
Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.
Reginald L. Bellury, for appellant.
DECIDED JULY 12, 1993.
Saturday May 23 21:16 EDT


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