Darty v. State

Deen, Presiding Judge,

concurring specially.

The defendant was indicted for shoplifting a pair of shoes on April 25, 1981, and a pair of jeans on July 17, 1981, at two separate terms of court. The offenses, however, were tried together at the October term of court, and Darty was convicted of both offenses and received two consecutive sentences.

Both the state and the defendant agree that the issue in question is governed by OCGA § 17-10-7 (c), which provides: “For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

This issue, however, is not to be controlling in this case. Although it was not included in the indictment, appellant was convicted of another shoplifting offense which occurred on October 15, 1986, when he entered a guilty plea to it on May 18,1987. At the sentencing hearing, counsel admitted that he knew prior to trial that the State would offer evidence of this conviction, and he made no objection to the court’s consideration of it in sentencing.

There is no statutory requirement that a conviction which antedates the offense for which the accused is sentenced be set out in the indictment in order to sentence a multiple offender of the same offense to a mandatory minimum term in prison. State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). That case relies upon OCGA § 17-10-2 (a) which provides that at the sentencing hearing “the judge shall hear additional evidence in extenuation, mitigation and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant, or the absence of any prior convictions and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.” (Emphasis supplied.) I agree with the majority that to the extent that Parker v. State, 170 Ga. App. 295 (1) (316 SE2d 855) (1984), is in conflict with Hendrixson, it must be disapproved.

I am authorized to state that Chief Judge Birdsong, Judge Carley, and Judge Sognier join in this special concurrence.

Decided September 20, 1988. W. Donald Kelly, for appellant. John M. Ott, District Attorney, J. Ellis Millsaps, Assistant District Attorney, for appellee.