Fleming v. State , 233 Ga. App. 483 ( 1998 )

Pope, Presiding Judge.

Denorris Fleming was tried for armed robbery, motor vehicle hijacking, and aggravated assault. He was acquitted of the hijacking charge, and the jury returned a verdict finding him guilty of armed robbery and the lesser offense of simple assault. Fleming appeals, arguing that the court erred in failing to grant his motion for directed verdict; in failing to charge the jury as he requested; and in failing to consider his First Offender Petition. For the following reasons, we affirm Fleming’s conviction and sentence, although in so doing we overrule State v. Allmond, 225 Ga. App. 509 (484 SE2d 306), cert. denied, 225 Ga. App. 906 (1997).

Viewing the evidence in the light most favorable to the verdict, on April 21, 1996, the victim was seated in her car in a driveway when she saw Fleming get out of a car. Fleming ran to the driver’s side of the victim’s car, stuck a gun inside the window of the car, and told the victim to get out of the car. When the victim complied, Fleming jumped in the car and drove off.

Although the weapon Fleming used the night of the crime was actually a pellet gun, the victim testified that on the night of the incident she thought the gun was a real one. The victim also testified that she thought Fleming would shoot her if she did not obey his instructions.

The victim identified Fleming as the perpetrator of the crime both in a photographic lineup and later in a lineup of individuals. She also identified Fleming at trial.

Officer Patricia Boyce of the City of East Point testified that she was patrolling an apartment complex when she saw Fleming rushing away as he saw the police vehicle. Her partner chased Fleming on foot, and Officer Boyce then saw a lady’s purse inside the vehicle Fleming had occupied. Officer Boyce ran the vehicle’s tag and discovered that it had been reported stolen within the hour.

Fleming gave a statement to police the day after the incident in which he denied any involvement in the carjacking. Several days later he gave a videotaped statement, in which he stated that he was joyriding during “Freaknik” weekend and was just joking when he pulled the gun on the victim. Fleming wrote a letter of apology to the victim, which an officer mailed to her.

At trial Fleming testified that at the time of the incident he was drinking and had intended to simply ask the victim for her phone number. Although Fleming stated that he did not remember pointing the gun at the victim, he admitted that twice he told her to get out of the car. On cross-examination, Fleming conceded that he approached the victim’s car with the gun in his hand and tapped on the car door with the gun. Fleming again apologized for his behavior.

1. Fleming claims that the evidence was insufficient to support the conviction for armed robbery and that the court erred in denying his motion for directed verdict. Specifically, he argues that the pellet gun used in the incident was not an offensive weapon and that he did not use the pellet gun in an intimidating manner.

We disagree. Based on the evidence presented, we conclude that, as used in this incident, the pellet gun constituted an offensive weapon. Morgan v. State, 191 Ga. App. 226, 227 (2) (381 SE2d 402) (1989); Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992); see generally OCGA § 16-8-41 (a). A rational trier of fact could find from the evidence adduced at trial proof of Fleming’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Fleming argues that the court erred in failing to give two of his requested jury charges. Fleming’s claim that the court erred in failing to give his requested instruction regarding offensive weapons is without merit for the reasons stated in Division 1. Moreover, the charge which the court gave regarding the term “offensive weapon” was proper.

Fleming’s argument that the court should have charged the jury on the lesser included offense of theft by taking is also without merit. The transcript shows that the court initially charged the jury on armed robbery and on the lesser included offense of robbery by intimidation. The jury twice asked to be recharged on armed robbery and the lesser included offense of robbery by intimidation, and the court twice recharged the jury.

“ ‘A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.’ (Citation and punctuation omitted.) Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994). However, ‘where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.’ (Emphasis in original.) Id. at 133.” Hopkins v. State, 227 Ga. App. 567 (1) (489 SE2d 368) (1997). See also James v. State, 210 Ga. App. 454, 455 (2) (b) (436 SE2d 565) (1993). Here, there was no evidence which would authorize the court to charge on the lesser included offense of theft by taking. Fleming made a videotaped confession admitting to all elements of armed robbery and admitted at trial that he took the car by using a gun. Fleming was guilty of armed robbery or robbery by intimidation, and the appropriate crimes were charged.

3. Finally, Fleming contends that the court erred when it failed to consider his First Offender Petition. Fleming filed the petition after the verdict was returned, but before the court entered the sentence. Fleming’s petition was timely. See generally OCGA § 42-8-60 (a).

In sentencing Fleming, the court relied on State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978), and because of the mandatory minimum sentences set forth in OCGA § 17-10-6.1, determined that it lacked authority to impose a sentence of less than ten years. Fleming argues that State v. Allmond, 225 Ga. App. 509, established that the provisions of the First Offender Act applied to the serious violent felonies listed in OCGA § 17-10-6.1.

At the time of the March 25, 1997 sentencing hearing, OCGA § 17-10-6.1 (b) provided: “[notwithstanding any other provisions of law to the contrary, any person convicted of a serious violent felony . . . [which includes armed robbery as defined in Code section 16-8-41] shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.” (Emphasis supplied.) See generally Bryant v. State, 229 Ga. App. 534 (494 SE2d 353) (1997); Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998). Subsection (d) of § 17-10-6.1 states: “[f]or purposes of this Code section, a first conviction of any serious violent felony means that the person has never been convicted of a serious violent felony under the laws of this state or of an offense under the laws of any other state or of the United States, which offense if committed in this state would be a serious violent felony.” OCGA § 16-8-41, which defines armed robbery, provides in subsection (d): “[a]ny person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” See State v. Stuckey, 145 Ga. App. 434; compare Lockhart v. State, 227 Ga. App. 481 (489 SE2d 594) (1997).

The First Offender Act of OCGA § 42-8-60 (a) provides: “[u]pon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.”

The question of the interrelation between OCGA §§ 17-10-6.1 and 42-8-60 was the focus of this Court’s inquiry in State v. Allmond, 225 Ga. App. 509. In that case, this Court concluded that the legislature intended that the First Offender Act apply to the defendant, who had pled guilty to six counts of armed robbery and two counts of possession of a firearm during a felony, regardless of the mandatory minimum sentences of OCGA § 17-10-6.1. In so finding, the Court stated: “if the legislative intent had been to deny some aspects of first offender treatment to perpetrators of certain crimes, this could have easily been stated.” Id. at 510.

In State v. Allmond, Allmond had argued that OCGA § 17-10-6.1 (b) was not applicable until a person was “convicted” of one of the specified crimes, and that because his guilty plea and selection for first offender treatment did not result in “an adjudication of guilt or conviction,” the mandatory minimum sentences did not apply. In affirming the trial court, this Court recognized that: “[u]pon fulfillment of the terms of probation or release from confinement, a first offender is discharged without any adjudication of guilt and is not considered to have a criminal conviction. OCGA § 42-8-62.” State v. Allmond, 225 Ga. App. at 509-510. Accordingly, this Court concluded that OCGA § 17-10-6.1 (b) was not intended to curtail the provisions of the First Offender Act.

We conclude that State v. Allmond must be overruled. Our conclusion is based on several factors, most important of which is the legislature’s recent pronouncement on this subject. On March 27, 1998, the General Assembly amended OCGA § 17-10-6.1 and added OCGA § 42-8-66 to the First Offender statute, in order to avoid the result reached in State v. Allmond. The amendments specifically state that a defendant who is convicted of one of the serious violent felonies contained in OCGA § 17-10-6.1 will not be eligible for First Offender treatment under OCGA § 42-8-60.

In enacting these provisions, the legislature declared: “in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the ‘Sentence Reform Act of 1994,’ that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence. . . .

“[C]ontrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the ‘Sentence Reform Act of 1994’ shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment.” Ga. L. 1998, p. 180, § 1, effective March 27, 1998.

Accordingly, the amended OCGA § 17-10-6.1 (b) provides: “[n]o person convicted of a serious violent felony as defined in subsection (a) of this Code section shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.” The newly enacted OCGA § 42-8-66 of the First Offender Act provides: “[t]he provisions of this article shall not apply to any person who is convicted of a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.”

Although the legislature failed to adjust its terminology in the new OCGA § 17-10-6.1 (b) and abandon the use of the word “convicted” since a defendant is not “convicted” under the First Offender Act, its intent in amending the statutes is clear. “If it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute.” (Citations and punctuation omitted.) First Union Nat. Bank &c. v. Collins, 221 Ga. App. 442, 445 (471 SE2d 892) (1996). “[Subsequent legislation declaring the intent of a legislative body in enacting an earlier statute is entitled to great weight in statutory construction.” (Citations and punctuation omitted.) Hicks v. State, 228 Ga. App. 235, 237 (1) (494 SE2d 342) (1997).

Our conclusion that the First Offender Act does not apply to the sentences for serious violent felonies outlined in OCGA § 17-10-6.1 (a) is also supported by Campbell v. State, 268 Ga. 44, 46 (485 SE2d 185) (1997). In that case, our Supreme Court stated that: “[t]he mandatory sentence legislation of the Sentence Reform Act was introduced to make truth in sentencing a reality, by ensuring that upon the conviction for a serious violent felony, the offender will serve the full sentence ordered by the court. Ga. L. 1994, p. 1959. [Cit.] The Act became effective on January 1, 1995, after ratification by the voters of Georgia at the 1994 November general election of an amendment to Art. IV, Sec. II, Par. II of the Georgia Constitution. This amendment authorized the General Assembly to provide for mandatory minimum sentences and to impose restrictions on the authority of the State Board of Pardons and Paroles to grant paroles. Ga. L. 1994, p. 1959, § 18.” Id. at 46 (4). Moreover, the 1994 amendment to Art. IV, Sec. II, Par. II states in subsection (b) (2): “[t]he General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirety for persons convicted of armed robbery, . . . and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence.” Subsection (d) of the amendment expressly ratified and approved previously enacted statutes dealing with mandatory minimum sentences. See 1995 Op. Atty. Gen. No. 95-4 (discussing the constitutional limitations on the power of the Board of Pardons & Paroles with respect to the inability to parole during the mandatory minimum sentence for the serious violent felonies set forth in OCGA § 17-10-6.1).

Based on the above, we conclude that the trial court here properly disregarded Fleming’s First Offender Petition and sentenced him correctly.

Judgment affirmed.

McMurray, P. J., Johnson, P. J., Smith, Ruffin, JJ., and Senior Appellate Judge Harold R. Banke concur. Eldridge, J., concurs specially. Andrews, C. J., Beasley and Blackburn, JJ., dissent.