Brown v. State , 144 Ga. App. 509 ( 1978 )

144 Ga. App. 509 (1978) 241 S.E.2d 621

BROWN
v.
THE STATE.

54677.

Court of Appeals of Georgia.

Submitted October 12, 1977. Decided January 10, 1978.

William S. Cain, for appellant.

E. Mullins Whisnant, District Attorney, William J. Smith, Assistant District Attorney, for appellee.

QUILLIAN, Presiding Judge.

The defendant was convicted of armed robbery and appeals after the overruling of his motion for new trial. Held:

1. We consider this appeal in compliance with the ruling of the Supreme Court in Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759).

2. The defendant was sentenced to life imprisonment. His counsel argues that the court erred by sentencing defendant under Code Ann. § 27-2511 (Ga. L. 1953, Nov. Sess., pp. 289, 290; 1974, pp. 352, 355) where he had not been indicted as a recidivist.

The trial judge conducted a sentencing hearing after verdict at which previous convictions of the defendant were introduced and the following colloquy occurred. The court: "You got two prior felony convictions and I believe it — some provisions of the law, that a conviction of the third felony, on certain conditions, that maximum penalty should be imposed." Prosecuting attorney: "That is correct, Your Honor."

It is well settled that "one must be indicted as a recidivist in order to impose recidivist punishment." Riggins v. Stynchombe, 231 Ga. 589, 593 (203 SE2d 208). Accord, Fore v. State, 237 Ga. 507 (3) (228 SE2d 885). However, under Code Ann. § 27-2503 (Ga. L. 1974, pp. 352, 357), prior convictions may be introduced at the presentence hearing in "aggravation of punishment." Bradley v. State, 135 Ga. App. 865 (219 SE2d 451). The trial judge has a discretion in imposing sentence within the parameters of the punishment prescribed and defendant's remedy for excessive harshness lies under Code Ann. § 27-2511.1 (Ga. L. 1974, pp. 352, 358; 1977, pp. 1098, 1104, eff. July 1, 1977). Lee v. State, 139 Ga. App. 65 (227 SE2d 878); Thomas v. State, 139 Ga. App. 364 (228 SE2d 386).

Here no contention is made as to lack of prior notice of the convictions under Code Ann. § 27-2503 nor as to their general inadmissibility. We do not regard the trial judge's statement as being an unqualified application of recidivist punishment with regard to the defendant since a reading of the entire hearing transcript does not reveal punishment was applied under Code Ann. § 27-2511 but instead shows it was based on defendant's record. Hence, we are not authorized to set aside the judgment.

Judgment affirmed. Shulman and Banke, JJ., concur.