Slaughter v. State , 304 Ga. App. 209 ( 2010 )

695 S.E.2d 743 (2010)

SLAUGHTER
v.
The STATE.

No. A10A0076.

Court of Appeals of Georgia.

May 27, 2010.

Fredrick B. Slaughter, pro se.

James McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

SMITH, Presiding Judge.

Fredrick Slaughter, pro se, appeals from a trial court's order sentencing him as a recidivist without parole. Slaughter contends the trial court erred by sentencing him as a recidivist based upon at least one of three convictions used by the State to convict him of possession of a firearm by a convicted felon. We agree. "Where the state proves a defendant's prior felony convictions for the purpose of convicting him of being a convicted felon in possession of a firearm, it may not also use those prior convictions in aggravation of punishment. We find unpersuasive the state's argument that the rule only applies when the defendant is sentenced a recidivist under OCGA § 17-10-7(a)." (Citations, punctuation and footnotes omitted.) Morrison v. State, 272 Ga.App. 34, 43(7), 611 S.E.2d 720 (2005). We must, therefore, vacate the trial court's order sentencing Slaughter as a recidivist and remand this case to the trial court for resentencing.

Judgment vacated and case remanded with direction.

MIKELL and ADAMS, JJ., concur.