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Sentencing Problem


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    • Statutes:



    OFFICIAL CODE OF GEORGIA ANNOTATED

    16-8-41     Armed robbery...

    (b) A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years. . . .

    (d) Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

    17-10-7. Punishment of repeat offenders; punishment and eligibility for parole of persons convicted of fourth felony offense

    (a). . . [A]ny person convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense. . . .

    (c). . .[A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served. . . .

    17-10-6.1. Punishment for serious violent offenders

    (a) As used in this Code section, the term "serious violent felony" means: . .

    (2) Armed robbery, as defined in Code Section 16-8-41. . . .

    (b) Notwithstanding any other provisions of law to the contrary, any person convicted of a serious violent felony as defined in paragraphs (2) through (7) of subsection (a) of this Code section shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.

    (c)

    (1) . . . [F]or a first conviction of a serious violent felony in which the defendant has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 14 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections. . . .

    (3) Any sentence imposed for the first conviction of any serious violent felony other than a sentence of life imprisonment or life without parole or death shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release administered by the State Board of Pardons and Paroles or by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court.



    CASES:



    King v. State, 313 S.E.2d 144 (Ga. Ct. App. 1984)

    Defendant was indicted and convicted on February 14, 1983, for possession of a firearm by a convicted felon in violation of OCGA 16-11-131 (Code Ann. 26-2914), which has an authorized punishment of one to five years. The conviction alleged and proved as an element of the offense was motor vehicle theft with a sentence of confinement to a penal institution. On April 6 the trial court sentenced defendant to three years, to be served on probation. During the sentence proceedings no mention was made by the court or the state of sentencing defendant as a repeat offender. Thereafter, the state filed a motion to vacate the sentence as void, on the ground that OCGA 17-10-7(a) (Code Ann. 27-2511) requires that a repeat offender be sentenced to the maximum punishment for the offense, which is five years. On May 31, the court granted the state's motion and sentenced defendant to five years, to be served on probation. Defendant appeals the increase in the sentence.

    Held: This appeal raises the first impression issue of whether the state can use the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the repeat offender statute. OCGA 17-10-7 (a) (Code Ann. 27-2511) was in effect when the General Assembly enacted OCGA 16-11-131 (Code Ann. 26-2914), possession of a firearm by a convicted felon, in 1980. If the General Assembly intended that repeat offender punishment be applied to possession of a firearm by a convicted felon, then every conviction for that offense could result in a minimum punishment of five years, thus rendering the authorized punishment for the offense of one to five years meaningless. A legislative Act should not be so construed as to render it meaningless. Scott v. Mayor, 186 Ga. 652, 653 (198 SE 693). "The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. [Cit.] All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts. [Cits.]" Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9 (178 SE2d 868). "When statutes are in conflict, the courts are bound to abide by the most recent legislative expression [cit.] . . ." Simmons v. State, 148 Ga. App. 317, 318 (251 SE2d 167). "[C]riminal statutes must be strictly construed against the state and liberally in favor of human liberty. [Cit.] If a statute increasing a penalty is capable of two constructions, it should be construed so as to operate in favor of life and liberty. [Cit.]" Knight v. State, 243 Ga. 770 (2), 775 (257 SE2d 182). A court in Texas, under substantially the same circumstances, has held thatwhere a prior felony conviction is used as an element of the offense of unlawfulpossession of a firearm by a convicted felon, that conviction cannot be againused to enhance punishment under a repeat offender statute. Ramirez v. State, 527 SW2d 542 (Tex. Crim. 1975).

    We conclude that the General Assembly did not intend that the allegation and evidence of a prior felony conviction, necessary for conviction under OCGA 16-11-131 (Code Ann. 26-2914), could also be used to punish a defendant as a repeat offender under OCGA 17-10-7 (a) (Code Ann. 27-2511); and did intend that the punishment provisions established for the offense be the only standard applied in sentencing. Therefore, since the original sentence was not void, the trial court erred in vacating it and imposing a sentence in accordance with OCGA 17-10-7 (a) (CodeAnn. 27-2511). The present sentence is reversed and the trial court is directed to reinstate the original sentence.

    Judgment of sentence reversed with direction.


    Stone v. State
    461 S.E.2d 548 (Ga. Ct. App. 1995)


    Timothy Lowell Stone appeals from his convictions for armed robbery and possession of a firearm during commission of a felony. He also challenges the sentence imposed in connection with the armed robbery offense.

    1. Stone alleges that the trial court erred by refusing to exercise discretion in sentencing him to life imprisonment on the armed robbery count. Prior to trial, Stone was notified of the State's intent to introduce his prior felony convictions as evidence in aggravation of punishment at the time of sentencing. After the jury returned a guilty verdict, the State asked the court to impose a life sentence, a maximum sentence for armed robbery, pursuant to OCGA 16-8-41(b), because of Stone's status as a recidivist. OCGA 17-10-7(a). The trial court has no discretion to probate or suspend any portion of the maximum sentence prescribed for the offense because the conviction required a life sentence. Therefore, Stone's assertion that the trial court erred in declining to exercise discretion in sentencing is without merit. In State v. Baldwin, 167 Ga. App. 737, 740 (4) (307 S.E.2d 679) (1983), this court determined that a trial court has no discretion to probate or suspend a portion of a mandatory life sentence imposed pursuant to OCGA 17-10-7(a). In Baldwin, as in this case, the imposition of a life sentence was mandatory pursuant to OCGA 17-10-7 (a), and the court held that OCGA 17-10-1(a) which expressly abrogates the trial court's discretionary power to grant probation in cases in which life imprisonment or capital punishment is imposed, applied. See Mosley v. State, 203 Ga. App. 275, 276-277 (4) (416 S.E.2d 736) (1992). n1. Because the required sentence for a recidivist convicted of the offense of armed robbery is life imprisonment and because OCGA 17-10-1(a) does notpermit a trial court to exercise discretion with regard to a life sentence imposed under these circumstances, we conclude that the trial judge did not err in imposing a life sentence on the armed robbery conviction. . . .

    n1 Cf. Knight v. State, 243 Ga. 770, 771 (257 S.E.2d 182) (1979) and Wallace v. State, 216 Ga. App. 718, 720 (5) (455 S.E.2d 615) (1995) in which the exercise of discretion was mandated where maximum sentences were for terms of years.



    PROBLEM:



    Suppose you are a public defender in Atlanta, Georgia. One of your clients named Joe Jackson is charged with shoplifting a handgun worth $150 from Wal-Mart, a felony in Georgia which carries a sentence of 1 to 10 years. His girlfriend, Stacy, was also charged. The gun was found in a bag in the trunk of Joe's car after he and Stacy were stopped in the Wal-Mart parking lot. The video tape from the store security camera shows Stacy putting the gun in her purse. No one actually saw Joe take any merchandise, but he allegedly distracted the clerk while Stacy took the gun. You realize that it is possible that Joe will be acquitted if the case goes to trial. During your interview, he admits that he and Stacy took the gun. He says that they made a mistake and just want to put it behind them and get on with their lives. You learn that Joe is awaiting trial on an unrelated armed robbery charge. Joe readily admits to the shoplifting charge, but swears that the armed robbery is a case of mistaken identity. You call the public defender who represents Joe on the armed robbery charge and she tells you that it is a very tryable case. The eyewitness identification is shaky and Joe has a good alibi. She says that she expects to win, but reminds you that "you never know what a jury will do." The armed robbery trial is set for next week. The prosecutor in Joe's shoplifting case has a big case coming up and in order to move this case today has agreed to recommend a sentence of time served (Joe has been in jail for 3 months because he cannot make bail) in exchange for Joe's guilty plea. The deal may be unavailable after today.


    QUESTIONS:



    (1) What advice do you give Joe regarding the shoplifting charge? How do O.C.G.A. 17-10-7(a), 17-10-6.1(b), (c)(1) and Stone v. State, 461 S.E.2d 548 (Ga. Ct. App. 1995) affect your advice?

    (2) You learn that this is not the first mistake Joe has ever made. He has two prior felony convictions: shoplifting in 1990 and possession of marijuana in 1989. Now what do you advise? See O.C.G.A. 17-10-7(c).

    (3) Suppose instead of shoplifting, Joe is charged with possession of a weapon by a convicted felon. How might your advice be different? See King v. State, 313 S.E.2d 144 (Ga. Ct. App. 1984).

    (4) Suppose you represent Stacy instead of Joe. Her case looks like a sure loser, and the prosecutor is offering one year of probation in exchange for her guilty plea. (Her father bailed her out of jail the day she was arrested). She has no prior convictions, but confides in you that she has a drug problem and has been in and out of treatment centers for the past few years. Simple possession of cocaine is a felony punishable by imprisonment for 2 to 15 years for a first offense, 5 to 30 years for a second offense. What should she consider before taking the deal? See O.C.G.A. 17-10-7(a). What if, in the alternative, the prosecutor offers to reduce the charge to misdemeanor shoplifting and recommend a sentence of 100 hours community service and one year on probation in exchange for Stacy's guilty plea? How might this be a better deal for Stacy?




    Dave MacKusick

    Emory School of Law

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