Bradshaw v. State , 145 Ga. App. 664 ( 1978 )

145 Ga. App. 664 (1978) 244 S.E.2d 600

BRADSHAW
v.
THE STATE.

55414.

Court of Appeals of Georgia.

Submitted March 6, 1978. Decided April 11, 1978.

Roman A. DeVille, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Assistant District Attorneys, for appellee.

McMURRAY, Judge.

Defendant was indicted for the offense of armed robbery in three counts (three separate victims). He was found guilty on all three counts and as to each count he was sentenced to 14 years (each count to run concurrently); to serve ten years with the balance of the sentence probated with order of probation incorporated by reference including condition that he not violate the laws of Georgia. A motion for new trial as later amended was filed and denied, and defendant appeals. Held:

1. The first enumeration of error argued by the defendant is that evidence presented in aggravation at the pre-sentence hearing was heard without prior notice to the defendant and is in direct violation of Code Ann. § 27-2503 (a) (Ga. L. 1974, pp. 352, 357), which clearly provides that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible. At the time of the pre-sentence hearing the state announced that it would tender at that time a certified copy of a plea and sentence, and the only objection made thereto was that it involved a nolo contendere plea. Whereupon the trial court ruled on the objection that "the statute provides that you may introduce nolo contenderes if counsel was there," at which time it was stated that defendant was represented by counsel. Consequently, the record does not sustain the contest or claims of the defendant that he was not notified, and the defendant has not shown any improper procedure here. Further, if no objection is made at the pre-sentence hearing a subsequent review of that phase is eliminated. Strozier v. State, 231 Ga. 140, 142 (200 SE2d 762); Adams v. State, 142 Ga. App. 252, 255 (7) (235 SE2d 667). See also Herring v. State, 238 Ga. 288, 290 (232 SE2d 826).

2. Under the totality of the circumstances, the pre-trial photographic identification in this case did not impermissibly taint the subsequent in-court identification of the defendant. Dodd v. State, 236 Ga. 572, 574 (224 SE2d 408).

Judgment affirmed. Quillian, P. J., and Webb, J., concur.