Hood v. State , 223 Ga. App. 573 ( 1996 )

479 S.E.2d 400 (1996) 223 Ga. App. 573

HOOD
v.
The STATE.

No. A96A2132.

Court of Appeals of Georgia.

November 15, 1996. Certiorari Denied February 28, 1997.

Paul R. Cadle, Jr., Rome, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Seconda Diane Hood was charged via accusation with felony theft by shoplifting and the misdemeanor offenses of giving a false name and false date of birth. The accusation also included a recidivism count based upon Hood's prior burglary conviction. After the jury returned a guilty verdict, the trial court sentenced Hood as a recidivist to ten years imprisonment on the shoplifting count. She received concurrent 12-month sentences on the misdemeanor counts. Held:

We reject Hood's contention that the State's use of an accusation rather than a grand jury indictment precluded the trial court from sentencing her as a felon. In enacting OCGA § 17-7-70.1, the legislature authorized the use of accusations rather than grand jury indictments for certain enumerated felonies, including OCGA § 16-8-14, the theft by shoplifting statute. Lamberson v. State, 265 Ga. 764(1), 462 S.E.2d 706 (1995) (finding OCGA § 17-7-70.1 not violative of the Fifth and Fourteenth Amendments). On these offenses, the State may proceed to trial upon accusation without obtaining a waiver of indictment. Id. Individuals accused under § 17-7-70.1 must be tried "according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury." OCGA § 17-7-70.1(a). Accordingly, the trial court was not required to sentence Hood as a misdemeanant simply because the State utilized an accusation rather than an indictment.

Further, notwithstanding Hood's argument to the contrary, the fact that a grand jury did not consider her prior conviction did not prevent the trial court from sentencing her as a recidivist. The necessity for grand juries to consider a defendant's prior convictions in imposing recidivist sentences ceased in 1974 when the legislature removed the responsibilities of sentencing from the juries' purview and adopted court-imposed sentencing. Wainwright v. State, 208 Ga.App. 777, 778(2)(a), 432 S.E.2d 555 (1993). The case on which Hood relies, Aldridge v. State, 158 Ga.App. 719, 721(4), 282 S.E.2d 189 (1981), applied the earlier law to require grand jury consideration of prior convictions. Id. (relying on Riggins v. Stynchcombe, 231 Ga. 589, 592-593, 203 S.E.2d 208 (1974)); see Anderson v. State, 176 Ga.App. 255, 256, 335 S.E.2d 487 (1985).

Judgment affirmed.

BIRDSONG, P.J., and BLACKBURN, J., concur.