Woodson v. State , 242 Ga. App. 67 ( 2000 )

Smith, Judge,

concurring specially.

I concur in the result reached by the majority, and I agree that the conviction must be affirmed and that the case must be remanded for resentencing. I write specially to add my thoughts on the reasons for the remand. As the majority points out, the State bears the burden of showing that foreign convictions used for purposes of recidivist sentencing were the result of conduct that would be a felony in Georgia. Georgia does not have degrees of burglary; every burglary in Georgia is a felony. But all unlawful entries upon the property of another do not necessarily constitute burglaries in this state. The facts and circumstances of an entry could result in the offender being charged with a misdemeanor, such as criminal trespass, which requires only an unlawful purpose rather than the intent to commit a felony. Because theft by receiving and escape could both be misdemeanors in Georgia, and two of the three Alabama burglaries were not for first degree burglary, but for third degree burglary, the State did not carry its burden of proving felonious conduct, and I agree with the majority that a remand is necessary in this case.

Decided January 25, 2000 Stephen T. Smith, for appellant. Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.