State v. Sears , 202 Ga. App. 352 ( 1991 )

Beasley, Judge,

concurring specially.

I concur fully in all divisions of the majority opinion except Division 8. Although the sentence meted to defendant was proper, I cannot agree with statements to the effect that a conviction of an offense which offense is subsequent in time to the offense on trial (defendant’s first offense), can support a recidivist sentence under OCGA § 16-13-30 (d). That subsection mandates a life sentence for “a second . . . offense,” not merely a second conviction. See Beasley v. State, 202 Ga. App. 349 (414 SE2d 663) (1991), special concurrence.

State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984), does not support the majority’s view because it involved a defendant whose first conviction was for the first-in-time offenses. When Hendrixson went to trial on the later offenses, she had already been convicted of the first offenses. The sentence imposed after the second conviction was for “the second series of offenses.” Id. at 853. Thus the situation discussed by the majority was not at issue in Hendrixson. Nor is it at issue here. Yet even the State, in this case, recognizes that “[u]nder the plain meaning of OCGA § 16-13-30 (d), a defendant shall be imprisoned for life upon conviction of a subsequent violation of OCGA § 16-13-30 (b). . . .” (Emphasis supplied.)

Just as a defendant cannot be given the life sentence for the second-in-time offense when the conviction of it is simultaneous with the conviction of the first-in-time offense, which is the holding here, so a defendant cannot be given the life sentence for the first-in-time offense when he or she already has a conviction for a later-occurring offense. The life sentence is a recidivist sentence, mandated upon the second conviction, which is for what is a second offense.