Stinnett v. State

Birdsong, Presiding Judge.

Chad Allen Stinnett appeals his convictions of burglary. His sole enumeration of error contends the trial court erred by denying him first offender treatment for this crime. Stinnett argues that the trial court improperly refused to exercise its discretion to grant him first offender treatment because he committed a misdemeanor after the offense for which he sought first offender treatment. Held:

Although the trial court, in fact, refused to give Stinnett first offender status because he committed a second offense, Stinnett misconstrues the import of the trial court’s remarks. The trial court stated that it was aware that the misdemeanor did not preclude granting first offender status, but “[i]n the court’s analysis he is not entitled to first offender because he, after committing one crime, committed another. Therefore he is not entitled to first offender treatment.”

Under our law, a trial court “may” grant first offender treatment (OCGA § 42-8-60), but granting first offender treatment is discretionary with the trial court (Todd v. State, 172 Ga. App. 231, 232 (323 SE2d 6); Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755)), and a trial court is not required to grant first offender status. Head v. State, 203 Ga. App. 730, 731 (417 SE2d 398). Further, although a trial court may not use a mechanical sentencing formula (see Jones v. State, 208 Ga. App. 472 (431 SE2d 136); Cottingham v. State, 206 Ga. App. 197, 199 (424 SE2d 794)), nothing in this record suggests that this trial court had such a policy. On the contrary, it is apparent from the remarks quoted above that this trial court considered appellant’s record and, exercising judicial discretion, determined that he was not entitled to first offender treatment. Accordingly, appellant’s contention is without merit.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.