Moore v. State , 236 Ga. App. 889 ( 1999 )

514 S.E.2d 73 (1999) 236 Ga. App. 889

MOORE
v.
The STATE.

No. A99A0371.

Court of Appeals of Georgia.

March 11, 1999.

Douglas C. Rogers, Thomasville, for appellant.

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

BLACKBURN, Judge.

Basil Lavoid Moore pled guilty to armed robbery and was sentenced to ten years to serve and ten years probation. Moore appeals the trial court's sentence, contending that it erred in automatically refusing to sentence the defendant under the First Offender Act, OCGA § 42-8-60 et seq.^[1] As the facts in the record do not support Moore's enumeration of error, we affirm.

Moore contends that our decision in Jones v. State, 208 Ga.App. 472, 431 S.E.2d 136 (1993) requires reversal. In Jones, the trial judge stated, in response to a request for first offender treatment, "I have never granted a first offender. I take the position that once you get to the Superior Court, this is a big folks' court, and I don't use the first offender treatment. Never have, never intend to." (Punctuation omitted.) Id. We determined that, although the application of the first offender treatment is in the trial court's discretion, the trial judge's complete and uncompromising refusal to consider that option in any circumstance was a failure to exercise such discretion. Id. at 473, 431 S.E.2d 136. Therefore, we vacated the sentence and remanded the case with the direction that the trial court consider first offender treatment. Id.

In the present case, the record does not reflect a mechanical sentencing formula, compare Jones, nor does the record show a failure to consider first offender treatment. It merely reflects a decision not to sentence Moore under such discretionary sentencing provisions. We find no abuse of discretion.

Judgment affirmed.

BEASLEY, P.J., and BARNES, J., concur.

NOTES

[1] We note that the legislature amended OCGA § 17-10-6.1 effective March 27, 1998, to disallow the use of the first offender treatment for the conviction of a serious violent felony, including armed robbery. This amendment does not apply to Moore's sentence as the armed robbery was committed on September 18, 1997, and he entered his guilty plea on March 6, 1998.