2020 Georgia Code :: Title 17 - Criminal Procedure :: Chapter 10 - Sentence and Punishment :: Article 1 - Procedure for Sentencing and Imposition of Punishment :: § 17-10-2. Conduct of Presentence Hearings in Felony Cases; Effect of Reversal for Erro (2024)

1. 1. Except in cases in which the death penalty may be imposed, upon the return of a verdict of "guilty" by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed. In the 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 accused, or the absence of any prior conviction and pleas.
   2. The judge shall also hear argument by the accused or the accused's counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. Except in cases where the death penalty may be imposed, the prosecuting attorney shall open and conclude the argument. In cases where the death penalty may be imposed, the prosecuting attorney shall open and the accused or the accused's counsel shall conclude the argument.
   3. Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence to be imposed under advisem*nt. The judge shall fix a sentence within the limits prescribed by law.
2. In cases in which the death penalty may be imposed, the judge, when sitting without a jury, in addition to the procedure set forth in subsection (a) of this Code section, shall follow the procedures provided for in Code Section 17-10-30.
3. In all cases tried by a jury in which the death penalty may be imposed, upon a return of a verdict of "guilty" by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. The hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided for in subsection (a) of this Code section. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circ*mstances, as defined in Code Section 17-10-30, exist and whether to recommend mercy for the accused. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.
4. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.

(Code 1933, § 27-2503, enacted by Ga. L. 1974, p. 352, § 7; Ga. L. 1990, p. 8, § 17; Ga. L. 1993, p. 1654, § 2; Ga. L. 2005, p. 20, § 11/HB 170; Ga. L. 2009, p. 223, § 2/SB 13.)

Cross references.

- General rules regarding order of argument after presentation of evidence, § 17-8-71.

Editor's notes.

- Ga. L. 1993, p. 1654, § 7, not codified by the General Assembly, and effective May 1, 1993, provides: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, a defendant whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act provided that: (1) jeopardy for the offense charged has not attached and the state has filed with the trial court notice of its intention to seek the death penalty or (2) the defendant has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking the death penalty after remand."

Ga. L. 1993, p. 1654, § 8, not codified by the General Assembly, and effective May 1, 1993, provides: "Except as provided in Section 6 of this Act [Code Section 17-10-32.1], the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act nor shall this Act be construed as repealing Code Sections 17-10-30, 17-10-31, or 17-10-32 of the Official Code of Georgia Annotated."

Ga. L. 1993, p. 1654, § 9, not codified by the General Assembly, and effective May 1, 1993, provides: "No person shall be sentenced to life without parole unless such person could have received the death penalty under the laws of this state as such laws have been interpreted by the United States Supreme Court and the Supreme Court of Georgia."

Ga. L. 2005, p. 20, § 1/HB170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"

Ga. L. 2005, p. 20, § 17/HB170, not codified by the General Assembly, provides that the 2005 amendment applies to all trials which commence on or after July 1, 2005.

Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand."

Ga. L. 2009, p. 223, § 9/SB 13, not codified by the General Assembly, provides that: "Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act."

Ga. L. 2009, p. 223, § 10/SB 13, not codified by the General Assembly, provides that: "A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state." Ga. L. 2011, p. 752, § 17(3) codified these provisions at Code Section 17-10-16.1.

Ga. L. 2009, p. 223, § 11(a)/SB 13, not codified by the General Assembly, provides that the law as set forth in this Code section as it existed prior to April 29, 2009, shall apply to all offenses committed on and before April 29, 2009, and the amendments by this Act shall apply to all crimes committed on and after April 29, 2009.

Ga. L. 2009, p. 223, § 11(b)/SB 13, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Law reviews.

- For article, "Toward a Perspective on the Death Penalty Cases," see 27 Emory L.J. 469 (1978). For article on recidivism and convictions based on nolo contendere pleas, see 13 Ga. L. Rev. 723 (1979). For article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 183 (1993). For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007). For comment on Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972), see 24 Mercer L. Rev. 491 (1973).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Judicial Sentencing for Felonies
• Jury Sentencing for Capital Cases
• Appellate Review

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1971, p. 902, § 1, and Ga. L. 1973, p. 159, § 1 are included in the annotations for this Code section.

Constitutionality of death penalty.

- Claim that the death penalty statute in Georgia is unconstitutional as applied to the defendants who are black is without merit. Stephens v. Kemp, 846 F.2d 642 (11th Cir.), cert. denied, 488 U.S. 872, 109 S. Ct. 189, 102 L. Ed. 2d 158 (1988).

Language of former Code 1933, § 27-2503 (see O.C.G.A. § 17-10-2) was mandatory. DeLoach v. State, 142 Ga. App. 666, 236 S.E.2d 904 (1977).

Failure to follow the mandate of O.C.G.A. § 17-10-2 is neither harmless nor waived by failure to object to procedure. Jefferson v. State, 205 Ga. App. 687, 423 S.E.2d 425 (1992); Eason v. State, 215 Ga. App. 614, 451 S.E.2d 820 (1994), overruled on other grounds, Turner v. State, 259 Ga. App. 902 (2003), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Martin v. State, 228 Ga. App. 59, 491 S.E.2d 142 (1997).

Language of O.C.G.A.

§ 17-10-2 was directory. - Language instructing the court to dismiss the jury during a presentence hearing is directory and only for the purpose of the jury's convenience. Jenkins v. State, 235 Ga. App. 547, 510 S.E.2d 87 (1998).

Applicability of subsection (a).

- O.C.G.A. § 17-10-2(a) is not applicable to sentences imposed pursuant to a hearing on a guilty plea. Burruss v. State, 242 Ga. App. 241, 529 S.E.2d 375 (2000).

Failure to hold hearing.

- Question whether a trial court's failure to hold a presentence hearing can be waived or held harmless only becomes an issue if the failure to hold a presentence hearing renders the defendant's sentence void. Williams v. State, 271 Ga. 686, 523 S.E.2d 857 (1999).

Sentence imposed by a trial court in a non-death penalty case is not rendered void by the court's failure to conduct a presentence hearing under O.C.G.A. § 17-10-2. Williams v. State, 271 Ga. 686, 523 S.E.2d 857 (1999).

Failure to complete hearing not justified.

- Defendant's profane tirade and physical agitation following return of the jury's verdict did not justify the failure to complete a presentence hearing. Hayes v. State, 211 Ga. App. 801, 440 S.E.2d 539 (1994).

Purpose of bifurcated trial.

- Two-step felony procedure was devised and enacted for the express purpose of prohibiting disclosure of prior convictions to the jury during the first phase of the trial. The General Assembly intended that any prior convictions be disclosed to the jury only at the second or sentencing phase of the trial. Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974).

Bifurcated trial was created to withhold matters inadmissible on the issue of guilt or innocence from the jury until that issue had been determined. Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974), vacated on other grounds, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977).

Purpose of notice requirement.

- Intention of the General Assembly in requiring that the defendant be notified prior to the trial was to give the convicted defendant enough time to rebut or explain any conviction record. Queen v. State, 131 Ga. App. 370, 205 S.E.2d 921 (1974).

Notice of intent as to sentence not required.

- O.C.G.A. § 17-10-2 does not require that the state notify the defendant of the sentence the state intends to seek; rather, the statute simply requires that the state notify the defendant of the evidence the state intends to use in aggravation of sentencing. Hightower v. State, 210 Ga. App. 216, 436 S.E.2d 31 (1993).

If the state filed notice of the state's intent to seek recidivist punishment approximately 80 minutes before the trial was scheduled to begin and the jury selected the previous day was to be sworn, timely notice was given to the defendant. Jenkins v. State, 235 Ga. App. 547, 510 S.E.2d 87 (1998).

Notice requirement of O.C.G.A. § 17-10-2 would not apply to preclude a trial court from considering a defendant's violent conduct which occurred during the trial or after the trial and prior to sentencing. Demetrios v. State, 246 Ga. App. 506, 541 S.E.2d 83 (2000), overruled on other grounds, White v. State, 2019 Ga. LEXIS 66 (Ga. 2019).

Presentence hearing was not required if the court imposed the statutory minimum sentence for cocaine trafficking under O.C.G.A. § 16-13-31(a)(1)(C). Edwards v. State, 219 Ga. App. 239, 464 S.E.2d 851 (1995).

Defendant was convicted of kidnapping with bodily injury, which carries a minimum life sentence; thus, the trial court did not err when the court denied the defendant's oral request for a presentence investigation prior to sentencing. Bolick v. State, 244 Ga. App. 567, 536 S.E.2d 242 (2000).

Notice of prior offenses used for recidivist purposes.

- Although it is not essential that the indictment set forth the prior offenses, if the indictment does not set forth prior offenses it is necessary that the record contain an "affirmative notice to defendant that his prior felony offenses would be used against him for recidivist purposes during sentencing." Ross v. State, 210 Ga. App. 455, 436 S.E.2d 496 (1993).

Even though the state failed to provide the defendant with the required notice, error in the imposition of a recidivist sentence was waived because at the presentence hearing the defendant's counsel did not object to the admission of the convictions and affirmatively stated that the defendant did not contest the convictions' admission. Hatcher v. State, 224 Ga. App. 747, 482 S.E.2d 443 (1997).

Defendant acknowledged in open court that the prosecution had disclosed the defendant's prior record and discussed with defense counsel "where defendant fell in the tier of a recidivist statute," thus, the defendant received adequate and clear notice as required by O.C.G.A. § 17-10-2. Mullinax v. State, 242 Ga. App. 561, 530 S.E.2d 255 (2000).

Defendant received sufficient notice of the state's intent to seek recidivist punishment when the defendant received notice of intent to introduce evidence of similar transactions, attached to which was a copy of the defendant's previous conviction for armed robbery. Herrington v. State, 243 Ga. App. 265, 533 S.E.2d 133 (2000), appeal dismissed, 265 Ga. App. 454, 594 S.E.2d 682 (2004).

Notice received prior to the swearing of the jury is sufficient to satisfy the requirement of O.C.G.A. § 17-10-2. Davis v. State, 244 Ga. App. 715, 536 S.E.2d 603 (2000); Davis v. State, 246 Ga. App. 877, 542 S.E.2d 626 (2000).

Defendant received proper notice of the state's intent to seek recidivist punishment because the disclosure certificate included defendant's GCIC criminal history, including convictions for armed robbery, and stated that all convictions would be used in aggravation of punishment pursuant to O.C.G.A. § 17-10-2. Young v. State, 245 Ga. App. 684, 538 S.E.2d 760 (2000).

State indicated service of process to the defendant's attorney, by mail and by fax, of the state's intent to introduce evidence in aggravation of punishment and therefore notice was sufficient. Follow up letter outlining plea negotiations and citing recidivist statute provided clear notice of same intent. Cabell v. State, 250 Ga. App. 530, 551 S.E.2d 386 (2001).

Clear notice required by O.C.G.A. § 17-10-2 was given when defense counsel stated at trial that counsel was aware of the state's intent to seek recidivism punishment and that notice of such intent had been received; further, no objection was made to the introduction of the defendant's felony convictions, and defense counsel stated that the documentation appeared to be proper certified copies of convictions of the client. Parnell v. State, 260 Ga. App. 213, 581 S.E.2d 263 (2003).

Although the state's original notice to defendant's counsel of the state's intention to admit prior felony convictions as aggravators for sentencing purposes was amended on the day of trial to include new convictions that were not previously listed, the court found that defendant's counsel was timely served with notice of the prior convictions pursuant to O.C.G.A. §§ 17-10-2(a) and17-10-7(b) because the defendant had time to review the convictions prior to the commencement of the trial; it was accordingly proper that the trial court considered the convictions in determining the appropriate sentence. Howard v. State, 262 Ga. App. 198, 585 S.E.2d 164 (2003).

Prior convictions listed on an attached GCIC as aggravation evidence for a defendant's sentencing for theft by deception were sufficient notice that the state intended to seek sentencing as a recidivist under O.C.G.A. §§ 17-10-2 and17-10-7. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008).

With regard to a defendant's convictions for aggravated assault, false imprisonment, and other crimes, the trial court did not err in sentencing the defendant as a recidivist despite the state serving notice of the state's intent to seek recidivism treatment until the morning of trial as, under O.C.G.A. § 17-10-2(a), such notice was timely and sufficient. Daniels v. State, 296 Ga. App. 795, 676 S.E.2d 13 (2009).

Waiver of notice.

- Defendant waived notice after defense counsel did not object to admission of the defendant's prior convictions and affirmatively stated that counsel did not contest admission of the convictions. Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003); Strange v. State, 244 Ga. App. 635, 535 S.E.2d 315 (2000).

Examination of the transcript of the sentencing hearing did not reveal whether the trial court considered the defendant's prior conviction in determining the sentence, although the court probated a portion of the sentence; however, the defendant waived any error by failing to object to the court's examination of the defendant's criminal history on the ground that the defendant received no notice. Adams v. State, 263 Ga. App. 694, 589 S.E.2d 269 (2003).

Defendant waived the defendant's objection to the use of evidence in aggravation of punishment under O.C.G.A. § 17-10-2 as the defendant failed to object at the presentencing hearing to the lack of notice. Ingram v. State, 262 Ga. App. 304, 585 S.E.2d 211 (2003).

Defendant waived any error in the state's notice of the state's intention to request that the defendant be sentenced as a recidivist under O.C.G.A. § 17-10-2(a) as the defendant failed to object to the introduction of the certificates of conviction at the presentencing hearing; defendant's pro se status did not relieve the defendant of the obligation to make timely objections and to comply with the procedural and substantive requirements of the law. Sims v. State, 265 Ga. App. 476, 594 S.E.2d 693 (2004).

Certified copies of prior convictions not required for notice.

- Notice of state's intent to present evidence upon sentencing of the defendant's previous convictions was sufficient even though certified copies of prior convictions were not included. Wynn v. State, 228 Ga. App. 124, 491 S.E.2d 149 (1997).

Notice not required.

- State was not required to notify a defendant who pled guilty of the state's intent to use in aggravation of punishment evidence that every other participant in the criminal enterprise who pled guilty had received jail time; the notice requirement of O.C.G.A. § 17-10-2(a) had been deleted, and the statute did not apply to sentencing following guilty pleas. McIntosh v. State, 287 Ga. App. 293, 651 S.E.2d 207 (2007).

Prior convictions need not be in indictment.

- Since 1974, when Georgia adopted judge sentencing, it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state's intention to seek recidivist punishment and of the identity of the prior convictions. Wainwright v. State, 208 Ga. App. 777, 432 S.E.2d 555 (1993).

When the prior convictions do no more than subject the defendant to a greater risk of the maximum sentence (O.C.G.A. § 17-10-7(a)) or even to a certainty of the maximum sentence (O.C.G.A. § 17-10-7(b)) for the crime as indicted, the prior convictions need not be alleged in the indictment; imposition of the maximum sentence has already been authorized by the grand jury's action, and adequate advance notice to defendant is assured by O.C.G.A. § 17-10-2(a). Wainwright v. State, 208 Ga. App. 777, 432 S.E.2d 555 (1993).

Indictment not used in aggravation of punishment.

- Mere rumors concerning the conduct of the defendant were not admissible, and although an indictment is more than mere rumor, an indictment is much less than a conclusive determination of guilt to permit the indictment's use in aggravation of punishment. Sinkfield v. State, 262 Ga. 239, 416 S.E.2d 288 (1992).

Evidence of events after trial.

- Since the witnesses' evidence was relevant to the question of sentence, including the defendant's moral character and predisposition to commit other crimes, the fact that it occurred after trial did not make it any less relevant. Pearce v. State, 256 Ga. App. 889, 570 S.E.2d 74 (2002).

Evidence of unproven criminal charges.

- Evidence of unproven criminal charges is admissible during the sentencing phase if the state timely notifies the defendant of the state's intention to introduce such evidence; however, the notice of unproven charges must be described with enough particularity to alert the defendant as to what the defendant must defend against. Thornton v. State, 264 Ga. 563, 449 S.E.2d 98 (1994).

Pending charges considered.

- Trial court did not err in considering the pending charges as aggravating circ*mstances of the pre-sentence hearing when the state did not provide the requisite notice to the defendant pursuant to O.C.G.A. § 17-10-2 since it was the defendant personally who introduced the topic of these charges on direct, subject to the prosecution's permissible follow-up cross-examinations. Andrews v. State, 207 Ga. App. 352, 427 S.E.2d 841 (1993).

Similar transaction evidence insufficient.

- Providing notice of intent to prevent similar transaction evidence does not vitiate the state's need to give notice that the state plans to use a prior conviction in aggravation of punishment. The purpose of O.C.G.A. § 17-10-2 is to give the defendant a chance to examine the defendant's record to determine if the convictions are in fact defendant's, if the defendant was represented by counsel, and any other defect which would render such documents inadmissible during the presentencing phase of the trial. This purpose is not served by the similar transaction notice. Armstrong v. State, 264 Ga. 237, 442 S.E.2d 759 (1994); Boyd v. State, 230 Ga. App. 314, 497 S.E.2d 3 (1998).

Notifying defendant of evidence to be presented.

- State need not provide written notice, prior to trial, of which statutory aggravating circ*mstances the state intends to rely upon. Roberts v. State, 252 Ga. 227, 314 S.E.2d 83, cert. denied, 469 U.S. 873, 105 S. Ct. 228, 83 L. Ed. 2d 157 (1984).

Notification of admission of driving record.

- Record revealed that the Department of Public Safety records of the defendant's driving record were properly authenticated and unaltered, and that the defendant was given notice a week prior to trial that the state intended to introduce evidence of several of defendant's prior convictions for the offense of driving while under the influence of alcohol, the trial court's admission into evidence of defendant's driving record was not error. Evans v. State, 190 Ga. App. 302, 378 S.E.2d 903 (1989).

Since the state told the defendant's attorney that the attorney's client had a criminal record and gave counsel the opportunity to review that record and at the sentencing hearing offered to continue the sentencing hearing so that the defendant's attorney could review the record, the defendant did receive clear notice of the convictions and the opportunity to examine the record. Bass v. State, 208 Ga. App. 859, 432 S.E.2d 602 (1993).

Service of notice of the state's intention to introduce evidence in aggravation of punishment was timely given that the defendant was served with a copy of the notice while the jury was being selected but before the jury were sworn. Payne v. State, 219 Ga. App. 318, 464 S.E.2d 884 (1995); Thomas v. State, 224 Ga. App. 816, 482 S.E.2d 472 (1997).

Court did not err in imposing a life sentence since it was shown that the state provided the defendant with pretrial notice that the state would use evidence of prior convictions in aggravation of the defendant's sentence, and the defendant was afforded the opportunity to investigate and rebut the validity of the convictions. Woods v. State, 224 Ga. App. 52, 479 S.E.2d 414 (1996).

Defendant's contention that the defendant did not receive timely notice of the state's intention to use prior convictions was without merit since the defendant conceded that the day before trial began the state gave the defendant copies of the prior convictions the state intended to use in aggravation. Anthony v. State, 236 Ga. App. 257, 511 S.E.2d 612 (1999).

One month before trial, the state filed a notice of the state's intent to present nonstatutory aggravating circ*mstances involving several incidents that occurred while the defendant was in jail awaiting trial; this notice and the supplement to the witness list were not untimely. Brannan v. State, 275 Ga. 70, 561 S.E.2d 414, cert. denied, 537 U.S. 1021, 123 S. Ct. 541, 154 L. Ed. 2d 429 (2002).

Since the state served the defendant's counsel with the state's notice of intent to use a previous conviction after the jury was selected but before the jury was impaneled, the state provided clear notice of the state's intent to use the defendant's prior conviction in aggravation of sentencing as required by O.C.G.A. § 17-10-2. Smith v. State, 261 Ga. App. 781, 584 S.E.2d 29 (2003).

Defendant waived appellate review of the defendant's argument that the trial court erred in considering a prior sexual battery charge at the pre-sentencing hearing because at the pre-sentencing hearing, the defendant made no objection to the use of that evidence in aggravation of punishment under O.C.G.A. § 17-10-2; even if the defendant had not waived the objection and did not receive proper notice of the state's intent to introduce the prior conviction at sentencing, the argument failed because in the court's order denying the motion for new trial, the trial court specifically stated that the court did not consider the prior conviction in sentencing the defendant. Andrews v. State, 307 Ga. App. 557, 705 S.E.2d 319 (2011).

Replay of testimony is not additional evidence as contemplated by O.C.G.A. § 17-10-2. Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685, cert. denied, 459 U.S. 981, 103 S. Ct. 317, 74 L. Ed. 2d 293 (1982).

Written notice of prior convictions is not required. Fox v. State, 163 Ga. App. 601, 295 S.E.2d 563 (1982); Moss v. State, 206 Ga. App. 310, 425 S.E.2d 386 (1992).

Defense counsel's awareness of defendant's prior conviction.

- Failure of defense counsel to object to the admission of a prior conviction offered in aggravation of sentence without notice to the defendant before trial is reversible error if defense counsel is aware of the conviction. West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000), overruling McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981) and Watkins v. State, 207 Ga. App. 766, 430 S.E.2d 105 (1993).

Prosecution's obligation under O.C.G.A. § 17-10-2(a) to give the defendant notice of the prosecution's intention to introduce the defendant's criminal history at sentencing to seek aggravation of the sentence was fulfilled when the defendant's criminal history was discussed with counsel during plea negotiations. Ogle v. State, 256 Ga. App. 26, 567 S.E.2d 700 (2002).

Although the state introduced evidence of the defendant's prior conviction as an aggravation in considering the appropriate sentence to impose on the defendant, who was convicted of various drug charges and bribery, the defendant's counsel was not ineffective for failing to object to the introduction of such prior conviction because the state provided the requisite prior notice pursuant to O.C.G.A. § 17-10-2(a) and the defendant chose not to mention to the defendant's counsel that the history was somewhat inaccurate; because the notice was sufficient, defendant's counsel was not ineffective. Hester v. State, 261 Ga. App. 614, 583 S.E.2d 274 (2003).

Statutory notice to defense attorney held sufficient.

- Trial court did not err in imposing a life sentence against the defendant as: (1) the state satisfied the notice requirement under O.C.G.A. § 17-10-2(a) by providing notice to the defendant's attorney; (2) the appeals court presumed that such information was communicated to the defendant; and (3) the defendant failed to contend otherwise. Blevins v. State, 283 Ga. App. 694, 642 S.E.2d 373 (2007).

Defendant had notice thus no ineffective assistance.

- Counsel's alleged failure to show the defendant a copy of the prior conviction the state used to enhance the conviction or in not asking the defendant to verify the conviction was not ineffective assistance as the record showed that the defendant was aware the state planned to use the prior conviction and that the defendant was given the relevant information about the conviction. Mayo v. State, 277 Ga. App. 282, 626 S.E.2d 245 (2006).

Counsel's failure to object to use of prior conviction to fix length of sentence.

- When the trial court used the defendant's prior conviction to fix the length of the defendant's sentence for a violation of the Georgia Controlled Substances Act (Act), O.C.G.A. § 16-13-20 et seq., the defendant's failure to object to such evidence waived the trial court's error; however, as the defendant's attorney failed to object to the trial court's use of the defendant's prior conviction, the defendant received ineffective assistance of counsel and was entitled to a new trial. Turner v. State, 259 Ga. App. 902, 578 S.E.2d 570 (2003).

Intent to use defendant's prior conviction at sentencing.

- Because the trial court excluded defendant's prior conviction based upon a belief that the court had no discretion based on the state's failure to give notice of the state's intent to use the prior conviction as required by O.C.G.A. § 17-16-4(a)(5), the trial court could consider the court's options under O.C.G.A. § 17-16-6 before re-sentencing. Kiser v. State, 327 Ga. App. 17, 755 S.E.2d 505 (2014).

Since defendant's counsel spoke for defendant at the sentencing hearing, O.C.G.A. § 17-10-2 was satisfied, and a trial court's admonition of the defendant was not a denial of the defendant's right of allocution. Blue v. State, 275 Ga. App. 671, 621 S.E.2d 616 (2005).

Trial court did not commit reversible error by failing to inform the defendant of the defendant's right to sentence review, although, this is the better procedure. Moreover, the defendant was not denied the defendant's right to speak on the defendant's own behalf during sentencing since the record showed that while the defendant's counsel spoke on the defendant's behalf during sentencing, neither the defendant nor defense counsel requested that the defendant be allowed to speak personally prior to sentencing, and after the sentence was imposed, the defendant spoke freely with the court regarding obtaining court-appointed appellate counsel. Fraser v. State, 283 Ga. App. 477, 642 S.E.2d 129 (2007), overruled in part by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Trial court did not violate the defendant's right of allocution when the trial court instructed the defendant not to interrupt its pronouncement of sentence; the requirements of O.C.G.A. § 17-10-2 were met when the defendant's counsel spoke on the defendant's behalf at the sentencing hearing. Habersham v. State, 289 Ga. App. 718, 658 S.E.2d 253 (2008).

Provision as to prior notice of prior convictions not applicable to misdemeanor conviction.

- As O.C.G.A. § 17-10-2 relates to the conduct of the presentence hearing in felony cases, if appellants were convicted of a misdemeanor, the assertion that the state's presenting of certified copies of appellant's prior convictions without prior notice to the appellant is without merit. Whisenhunt v. State, 172 Ga. App. 742, 324 S.E.2d 570 (1984).

Questioning character witnesses about offenses of which notice not given.

- If the defendant objects to the district attorney's questions to the defendant's character witnesses about offenses of which the state has not given notice, the district attorney is required to demonstrate that the attorney's questions were asked in good faith, and based on reliable information that can be supported by admissible evidence. Christenson v. State, 261 Ga. 80, 402 S.E.2d 41, cert. denied, 502 U.S. 855, 112 S. Ct. 166, 116 L. Ed. 2d 130 (1991); Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995), cert. denied, 519 U.S. 830, 117 S. Ct. 97, 136 L. Ed. 2d 52 (1996).

Questions asked of a character witness about prior convictions were based on National Crime Information Center reports so the state was able to demonstrate that the questions were asked in good faith and were based upon reliable information. Walker v. State, 214 Ga. App. 777, 449 S.E.2d 322 (1994).

O.C.G.A. § 17-10-2 is not applicable to juvenile disposition hearings. C.P. v. State, 167 Ga. App. 374, 306 S.E.2d 688 (1983); Moody v. State, 206 Ga. App. 387, 425 S.E.2d 397 (1992).

Misdemeanor cases.

- O.C.G.A. § 17-10-2 applies only to felony cases, not misdemeanor cases. Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986).

State was not required to give the defendant pretrial notice of evidence in aggravation of punishment in a misdemeanor prosecution for driving under the influence. Trotter v. State, 179 Ga. App. 314, 346 S.E.2d 390 (1986).

Whether a jury is hopelessly deadlocked is an evaluation committed to the sound discretion of the trial court, subject to appellate review for an abuse of discretion. Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Court can require that defendant be sworn.

- When the defendant, during a presentence hearing, offers oneself as a witness, the trial court can properly require that the defendant be sworn. Banks v. State, 131 Ga. App. 215, 205 S.E.2d 520 (1974).

Right of allocution.

- Defendant was not denied the right of allocution because counsel spoke on the defendant's behalf regarding mitigation and punishment, and neither the defendant nor counsel requested that the defendant personally speak. Nash v. State, 225 Ga. App. 10, 482 S.E.2d 520 (1997).

Even assuming that the defendant had a constitutional right of allocution, the defendant was not denied such right if the defendant was afforded an opportunity to argue to the sentencing court. Murray v. State, 269 Ga. 871, 505 S.E.2d 746 (1998).

Trial court did not violate the defendant's right of allocution when the trial court instructed the defendant not to interrupt its pronouncement of sentence; the requirements of O.C.G.A. § 17-10-2 were met when the defendant's counsel spoke on the defendant's behalf at the sentencing hearing. Habersham v. State, 289 Ga. App. 718, 658 S.E.2d 253 (2008).

Trial counsel was not ineffective in failing to object to the denial of the right to allocution as the defendant's right was not denied because, during sentencing, defense counsel made a brief statement on the defendant's behalf, describing the defendant's difficult life and upbringing, before the defendant directly addressed the trial court by informing the court of the time the defendant had already served with regard to the charges; and the trial court did not err in prohibiting the defendant from interrupting the court when the trial court was prepared to announce the court's sentence. Pepe-Frazier v. State, 331 Ga. App. 263, 770 S.E.2d 654 (2015), cert. denied, No. S15C1105, 2015 Ga. LEXIS 412 (Ga. 2015).

In a non-negotiated guilty plea to aggravated assault, aggravated battery, and reckless driving, the trial court properly denied the defendant's motion to withdraw the defendant's guilty plea because the trial court complied with the statutory right to allocution when the court gave counsel the opportunity to speak on behalf of the defendant; and the supreme court had rejected the argument that the right to allocution was personal and could not be satisfied by counsel's speaking on the defendant's behalf. Seagraves v. State, 339 Ga. App. 258, 793 S.E.2d 164 (2016).

Victim impact consequences.

- State is not precluded from introducing evidence that is admissible for purposes other than demonstrating victim impact if that evidence also incidentally conveys that the defendant's crime had victim impact consequences. Sermons v. State, 262 Ga. 286, 417 S.E.2d 144 (1992).

Oral victim impact testimony is not controlled by the notice provision of O.C.G.A. § 17-10-2(a) and is not the type of evidence "in aggravation of sentence" contemplated by that statute. Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999).

Section does not authorize sentence greater than prescribed by law.

- Even under the two-step felony procedure set forth in this section, an accused cannot receive a sentence greater than that prescribed by law for the crime for which the accused was indicted and convicted. Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974).

Maximum punishment may not be increased at election of prosecuting officers.

- One cannot be indicted by a grand jury for only one offense carrying a maximum punishment, and then have that maximum punishment increased at the election of the state's prosecuting officers. Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974).

Trial under this section for crime committed before effective date.

- Trial of the defendant in accordance with the provisions of this section, although the date the alleged crime was committed was prior to the effective date of that section, is not a proper ground to set aside a conviction upon a petition for writ of habeas corpus. Coleman v. Caldwell, 229 Ga. 656, 193 S.E.2d 846 (1972).

Failure to conduct presentence investigation excused.

- Court did not fail to conduct a presentence investigation pursuant to O.C.G.A. § 17-10-2(a), since the record revealed that the court did inquire of the defendant and defense counsel, after the jury had been excused, whether they were ready to proceed with sentencing, counsel responded in the affirmative and the court gave every available opportunity to introduce evidence. Willey v. State, 209 Ga. App. 398, 433 S.E.2d 674 (1993).

Trial court did not err in failing to conduct a presentence investigation since the defendant was given the opportunity for an investigation and such opportunity was declined. Davis v. State, 214 Ga. App. 360, 448 S.E.2d 26 (1994); Evans v. State, 240 Ga. App. 297, 523 S.E.2d 103 (1999).

Defendant not provided a presentence report.

- Failure to provide the defense with a presentence report showing the defendant's criminal record did not violate O.C.G.A. § 17-10-2 since there was no evidence that the trial court relied on the report to determine the length of the sentence. Denny v. State, 226 Ga. App. 432, 486 S.E.2d 417 (1997).

Providing only summary of presentence report.

- Since O.C.G.A. § 17-10-2 gave the trial court discretion whether to reveal the content of the presentence report to defense counsel and the state, the trial court did not err by making available to the defendant only a summary of the defendant's prior convictions, which appeared to be the basis for the sentence, rather than the whole presentence report. Williams v. State, 254 Ga. App. 836, 563 S.E.2d 914 (2002).

Consideration of foreign pleas.

- Trial court's consideration of guilty pleas and probated sentence entered into in another state jurisdiction was proper. Potts v. State, 207 Ga. App. 863, 429 S.E.2d 526 (1993).

Nolo contendere plea.

- Previous plea of nolo contendere was not improperly considered in sentencing a defendant; such a plea could be considered in aggravation of punishment, and even if the plea had been improperly introduced into evidence, there was no indication that the trial court was influenced by the plea. McIntosh v. State, 287 Ga. App. 293, 651 S.E.2d 207 (2007).

Defective notice does not void sentence.

- When the defendant, whose conviction had been affirmed on direct appeal, later filed a motion to correct sentence on the ground that the defendant had not received notice under O.C.G.A. § 17-10-2 of the state's intent to use prior convictions to seek recidivist punishment, the court lacked jurisdiction over the appeal from the denial of the motion. Defective notice did not void the sentence; rather, it was a procedural defect. Ward v. State, 299 Ga. App. 63, 682 S.E.2d 128 (2009).

Waiver of notice required for life term.

- Error by the trial court in imposing a life sentence when the defendant was not given formal notice prior to trial of the state's intent to demand recidivist punishment was waived by the defendant's failure to object at the time the state introduced the defendant's prior drug conviction into evidence during the presentencing phase of the trial. Tillman v. State, 217 Ga. App. 269, 457 S.E.2d 228 (1995).

Notice requirement in seeking life sentence.

- Written notice that the state intends to present evidence of prior convictions, coupled with oral notice that the state intends to seek a life sentence, satisfies the notice requirement. Washington v. State, 238 Ga. App. 561, 519 S.E.2d 234 (1999).

Admission of any lawful evidence in penalty phase.

- During the penalty phase, any lawful evidence which tends to show the motive of the defendant, the defendant's lack of remorse, the defendant's general moral character, and the defendant's predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of O.C.G.A. § 17-10-2. Sears v. State, 270 Ga. 834, 514 S.E.2d 426 (1999).

For purposes of an ineffective assistance of counsel claim, the defendant did not show the defendant was harmed by the failure of defense counsel to request a formal presentence investigation when, at sentencing, counsel informed the court as to the defendant's lack of a prior criminal record and the defendant's exemplary behavior since the offenses. Jones v. State, 226 Ga. App. 619, 487 S.E.2d 371 (1997).

In order to prevail on a claim that the defendant's attorney rendered ineffective assistance by failing to object to the introduction of evidence in aggravation of sentencing, the defendant was required to show prejudice; because the trial court did not rely upon such evidence, the defendant was unable to establish prejudice, and the defendant's claim of error presented no basis for reversal. Autry v. State, 250 Ga. App. 107, 549 S.E.2d 769 (2001).

Mitigation evidence sufficient.

- Counsel's argument that the injuries suffered by the defendant were far worse than those suffered by the victim was a sufficient argument concerning mitigation. Cross v. State, 285 Ga. App. 518, 646 S.E.2d 723 (2007), cert. denied, No. S07C1479, 2007 Ga. LEXIS 680 (Ga. 2007).

Bench conference on sentencing in presence of jury.

- There was no error in the trial court's failure to dismiss the jury during a bench conference on sentencing since the order of argument outlined in O.C.G.A. § 17-10-2 was followed. Jenkins v. State, 235 Ga. App. 547, 510 S.E.2d 87 (1998).

No error on part of trial court in prohibiting defendant's remarks at inappropriate time.

- With regard to a defendant's convictions on three counts of aggravated assault with intent to rob, the trial court did not err by refusing to allow the defendant to speak and to offer evidence in mitigation of the punishment at sentencing as, to the contrary, the record revealed that the trial court heard evidence in mitigation from two of the defendant's relatives, heard the arguments of defense counsel, and when the trial court asked the defendant directly if the defendant had anything to say, the defendant responded in the negative. After the trial court began to pronounce sentence, the defendant interrupted, indicating a desire to make a statement, and there was no error on the part of the trial court finding that it was too late; further, the trial court did not violate the defendant's right of allocution when the court instructed the defendant not to interrupt the court's pronouncement of sentence. Pilkington v. State, 298 Ga. App. 317, 680 S.E.2d 164 (2009), cert. denied, No. S09C1717, 2010 Ga. LEXIS 54 (Ga. 2010).

Cited in Ballard v. State, 131 Ga. App. 847, 207 S.E.2d 246 (1974); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975); Shepherd v. State, 234 Ga. 75, 214 S.E.2d 535 (1975); Adkins v. State, 134 Ga. App. 507, 215 S.E.2d 270 (1975); Arnold v. State, 134 Ga. App. 853, 216 S.E.2d 373 (1975); Ingram v. State, 134 Ga. App. 935, 216 S.E.2d 608 (1975); Heard v. State, 135 Ga. App. 685, 218 S.E.2d 866 (1975); Bradley v. State, 135 Ga. App. 865, 219 S.E.2d 451 (1975); Smokes v. State, 136 Ga. App. 8, 220 S.E.2d 39 (1975); Moss v. State, 136 Ga. App. 241, 220 S.E.2d 761 (1975); Cloud v. State, 136 Ga. App. 244, 220 S.E.2d 763 (1975); Stanley v. State, 136 Ga. App. 385, 221 S.E.2d 242 (1975); Davis v. State, 136 Ga. App. 749, 222 S.E.2d 188 (1975); Pounds v. State, 136 Ga. App. 852, 222 S.E.2d 629 (1975); Glisson v. State, 136 Ga. App. 864, 222 S.E.2d 680 (1975); McNeese v. State, 236 Ga. 26, 222 S.E.2d 318 (1976); Hudson v. State, 137 Ga. App. 439, 224 S.E.2d 48 (1976); David v. State, 137 Ga. App. 425, 224 S.E.2d 83 (1976); Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976); Carter v. State, 137 Ga. App. 824, 225 S.E.2d 73 (1976); Herrin v. State, 138 Ga. App. 729, 227 S.E.2d 498 (1976); Hamby v. State, 237 Ga. 373, 228 S.E.2d 787 (1976); Hewell v. State, 139 Ga. App. 622, 229 S.E.2d 92 (1976); Fair v. State, 140 Ga. App. 281, 231 S.E.2d 1 (1976); Byrd v. Hopper, 537 F.2d 1303 (5th Cir. 1976); Chaplin v. State, 141 Ga. App. 788, 234 S.E.2d 330 (1977); Gill v. State, 141 Ga. App. 823, 234 S.E.2d 665 (1977); Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977); Stewart v. State, 239 Ga. 588, 238 S.E.2d 540 (1977); Lewis v. State, 239 Ga. 732, 238 S.E.2d 892 (1977); Boyer v. State, 240 Ga. 170, 240 S.E.2d 68 (1977); Richardson v. State, 144 Ga. App. 416, 240 S.E.2d 917 (1977); Brown v. State, 144 Ga. App. 509, 241 S.E.2d 621 (1978); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978); Spraggins v. State, 240 Ga. 759, 243 S.E.2d 20 (1978); Thomas v. State, 145 Ga. App. 69, 243 S.E.2d 250 (1978); Bradshaw v. State, 145 Ga. App. 664, 244 S.E.2d 600 (1978); Favors v. State, 145 Ga. App. 864, 244 S.E.2d 902 (1978); Ramsey v. State, 241 Ga. 426, 246 S.E.2d 190 (1978); Thomas v. State, 146 Ga. App. 501, 246 S.E.2d 498 (1978); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979); Fleming v. State, 243 Ga. 120, 252 S.E.2d 609 (1979); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979); Melton v. State, 149 Ga. App. 506, 254 S.E.2d 732 (1979); Amerson v. Zant, 243 Ga. 509, 255 S.E.2d 34 (1979); Legare v. State, 243 Ga. 744, 257 S.E.2d 247 (1979); Corn v. Hopper, 244 Ga. 28, 257 S.E.2d 533 (1979); Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465 (1979); Turner v. State, 151 Ga. App. 631, 260 S.E.2d 756 (1979); Almon v. State, 151 Ga. App. 863, 261 S.E.2d 772 (1979); Newton v. State, 154 Ga. App. 98, 267 S.E.2d 641 (1980); Moret v. State, 246 Ga. 5, 268 S.E.2d 635 (1980); Morrison v. State, 155 Ga. App. 234, 270 S.E.2d 397 (1980); Brown v. State, 246 Ga. 251, 271 S.E.2d 163 (1980); Goodrum v. State, 158 Ga. App. 602, 281 S.E.2d 254 (1981); Jackson v. State, 158 Ga. App. 702, 282 S.E.2d 181 (1981); Peavy v. State, 159 Ga. App. 280, 283 S.E.2d 346 (1981); Varnes v. State, 159 Ga. App. 452, 283 S.E.2d 673 (1981); Fowler v. State, 159 Ga. App. 496, 283 S.E.2d 710 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Garland v. State, 160 Ga. App. 97, 286 S.E.2d 330 (1981); Hall v. State, 160 Ga. App. 508, 287 S.E.2d 223 (1981); Richards v. State, 160 Ga. App. 489, 287 S.E.2d 394 (1981); Wooten v. State, 160 Ga. App. 747, 288 S.E.2d 94 (1981); Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Howard v. State, 161 Ga. App. 743, 289 S.E.2d 815 (1982); Williams v. State, 162 Ga. App. 120, 290 S.E.2d 341 (1982); Arnold v. State, 163 Ga. App. 94, 292 S.E.2d 891 (1982); Buttrum v. State, 249 Ga. 652, 293 S.E.2d 334 (1982); Arnold v. State, 163 Ga. App. 10, 293 S.E.2d 501 (1982); Monroe v. State, 249 Ga. 832, 295 S.E.2d 512 (1982); Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982); Lewis v. State, 164 Ga. App. 339, 297 S.E.2d 303 (1982); Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982); Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982); Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983); Raymond v. State, 168 Ga. App. 487, 309 S.E.2d 669 (1983); Moore v. Zant, 722 F.2d 640 (11th Cir. 1983); Mitchell v. Hopper, 564 F. Supp. 780 (S.D. Ga. 1983); Parker v. State, 170 Ga. App. 295, 316 S.E.2d 855 (1984); Saine v. State, 170 Ga. App. 610, 317 S.E.2d 650 (1984); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984); Devier v. State, 253 Ga. 604, 323 S.E.2d 150 (1984); Ross v. State, 254 Ga. 22, 326 S.E.2d 194 (1985); Walker v. State, 254 Ga. 149, 327 S.E.2d 475 (1985); Wright v. State, 255 Ga. 109, 335 S.E.2d 857 (1985); Mitchell v. Kemp, 762 F.2d 886 (11th Cir. 1985); Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985); Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985); Rielli v. State, 174 Ga. App. 220, 330 S.E.2d 104 (1985); Etchison v. State, 175 Ga. App. 723, 334 S.E.2d 324 (1985); Beck v. State, 255 Ga. 483, 340 S.E.2d 9 (1986); Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Green v. State, 178 Ga. App. 203, 342 S.E.2d 386 (1986); Black v. State, 179 Ga. App. 170, 345 S.E.2d 678 (1986); McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987); Darty v. State, 188 Ga. App. 447, 373 S.E.2d 389 (1988); Nobles v. State, 191 Ga. App. 594, 382 S.E.2d 637 (1989); Hunter v. State, 192 Ga. App. 675, 385 S.E.2d 764 (1989); Giles v. State, 193 Ga. App. 93, 387 S.E.2d 5 (1989); Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989); Spencer v. State, 260 Ga. 640, 398 S.E.2d 179 (1990); Anderson v. State, 199 Ga. App. 559, 405 S.E.2d 558 (1991); Mattarochia v. State, 200 Ga. App. 681, 409 S.E.2d 546 (1991); Franklin v. State, 201 Ga. App. 147, 410 S.E.2d 451 (1991); Mays v. State, 262 Ga. 90, 414 S.E.2d 481 (1992); Hill v. State, 263 Ga. 37, 427 S.E.2d 770 (1993); Duncan v. State, 213 Ga. App. 394, 444 S.E.2d 583 (1994); Jordan v. State, 217 Ga. App. 420, 457 S.E.2d 692 (1995); Rowe v. State, 266 Ga. 136, 464 S.E.2d 811 (1996); Martin v. State, 219 Ga. App. 277, 464 S.E.2d 872 (1995); Gulley v. State, 271 Ga. 337, 519 S.E.2d 655 (1999); Hernandez v. State, 244 Ga. App. 874, 537 S.E.2d 149 (2000); Anderson v. State, 246 Ga. App. 189, 539 S.E.2d 879 (2000); Anderson v. State, 246 Ga. App. 189, 539 S.E.2d 879 (2000); Brown v. State, 246 Ga. App. 517, 541 S.E.2d 112 (2000); Hill v. State, 251 Ga. App. 437, 554 S.E.2d 579 (2001); Nation v. State, 252 Ga. App. 620, 556 S.E.2d 196 (2001); Person v. State, 257 Ga. App. 464, 571 S.E.2d 472 (2002); Cummings v. State, 261 Ga. App. 281, 582 S.E.2d 231 (2003); Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004); Horne v. State, 286 Ga. App. 712, 649 S.E.2d 889 (2007); Jones v. State, 278 Ga. 669, 604 S.E.2d 483 (2004); Evans v. State, 290 Ga. App. 746, 660 S.E.2d 841 (2008); Beck v. State, 292 Ga. App. 472, 665 S.E.2d 701 (2008); Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008); Redden v. State, 294 Ga. App. 879, 670 S.E.2d 552 (2008); Noellien v. State, 298 Ga. App. 47, 679 S.E.2d 75 (2009); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Strong v. State, Ga. , 845 S.E.2d 653 (2020);.

Judicial Sentencing for Felonies

Purpose.

- Purpose of subsection (a) of this section is to allow a defendant to examine the defendant's record to determine if the convictions are in fact defendant's, if the defendant was represented by counsel, and any other defect which would render such documents inadmissible during the presentencing phase of the trial. Adams v. State, 142 Ga. App. 252, 235 S.E.2d 667 (1977); Herring v. State, 238 Ga. 288, 232 S.E.2d 826 (1977); Black v. State, 146 Ga. App. 226, 246 S.E.2d 133 (1978); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980); Williams v. State, 162 Ga. App. 680, 292 S.E.2d 560 (1982); Johnson v. State, 171 Ga. App. 851, 321 S.E.2d 402 (1984); Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986); Bacon v. State, 188 Ga. App. 782, 374 S.E.2d 351 (1988).

Recidivism evidence used to enhance sentence.

- Trial court may impose a higher degree of punishment for an offense due to evidence in aggravation of the punishment and not have sentenced the defendant under a recidivist statute when the defendant was never indicted under a recidivist statute. Williams v. State, 208 Ga. App. 716, 431 S.E.2d 469 (1993).

Trial court did not err in sentencing the defendant to an eight-year sentence on a burglary offense because the defendant was incorrect that the maximum permissible sentence for that offense was five years as certified copies of prior burglary convictions were presented and the trial court properly sentenced the defendant as a recidivist. Martin v. State, 349 Ga. App. 656, 825 S.E.2d 227 (2019).

"Jury verdict" includes verdict returned by any trier of fact.

- Reference to a "jury verdict" in O.C.G.A. § 17-10-2(a) includes a verdict returned by any trier of fact. Thus, in a bench trial, the court has the authority to consider the defendant's prior conviction in aggravation when the state has given the defendant notice before trial of the state's intent to use the conviction in aggravation. Edwards v. State, 260 Ga. 121, 390 S.E.2d 580 (1990).

Use of plea bargain.

- O.C.G.A. § 17-10-2(a) did not operate to bar the trial court from relying on one of the cocaine charges to which the defendant pled guilty in a guilty plea hearing in order to impose an enhanced mandatory life sentence pursuant to O.C.G.A. § 16-13-30(d) for the second sale of cocaine charge to which the defendant pled guilty at the same hearing. Plea bargain negotiations can serve the same purpose as the giving of notice under subsection (a) of that section and when plea bargain negotiations are conducted, the defendant can be given "clear notice" of what the state intends to rely upon in aggravation of sentencing at the guilty plea hearing. Martin v. State, 207 Ga. App. 861, 429 S.E.2d 332 (1993).

Defendant's claim that the trial court erred in sentencing the defendant after accepting a negotiated plea in the absence of the presentence hearing required by O.C.G.A. § 17-10-2 lacked merit because the section does not reach sentencing following guilty pleas; the terms of that section apply only in those cases in which sentence is imposed after a jury trial, a bench trial, or probation revocation proceedings for a first offender. Gilbert v. State, 245 Ga. App. 544, 538 S.E.2d 104 (2000).

Discovery in presentence hearings in both capital and noncapital cases is governed by O.C.G.A. § 17-10-2. The Criminal Procedure Discovery Act, O.C.G.A. § 17-16-1 et seq., does not apply. State v. Lucious, 271 Ga. 361, 518 S.E.2d 677 (1999).

Presentence hearing discovery misconduct.

- Trial court did not err in denying the defendant's motion for a new trial based on the defendant's trial counsel failing to object to the state failing to provide notice of the state's intent to use a prior conviction in aggravation of sentencing because the defendant could not show that the outcome of sentencing would have been different. Soler v. State, 354 Ga. App. 93, 840 S.E.2d 169 (2020).

No right to jury at presentence hearing.

- There was no reason to retain the jury for a presentence hearing since there was no discretion in determining the length of the defendant's sentence, the possibility of parole, or the possibility of probation. Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Trial court did not err in dismissing the jury over the defendant's objection during the sentencing phase of trial because the state presented evidence of the defendant's prior conviction on two counts of armed robbery. Thus, the sentence in the case was mandatory, although the trial judge was given discretion to probate or suspend the sentence, and the trial judge could determine the sentence without a jury. Shields v. State, 264 Ga. App. 232, 590 S.E.2d 217 (2003).

Before this section was enacted, defendants were not absolutely entitled to a sentence imposed by jury. Zarick v. State, 134 Ga. App. 548, 215 S.E.2d 311 (1975).

No right to jury-imposed sentence even if the law at time of offense.

- There does not accrue to a defendant a substantial right to have the defendant's sentence imposed by a jury because such was the law at the time of the offense. Jones v. State, 233 Ga. 662, 212 S.E.2d 832 (1975).

Fact that the offenses occurred before July 1, 1974, the date this section became effective, does not entitle the defendant to a jury sentence when the trial was conducted after that date. DeLoach v. State, 142 Ga. App. 666, 236 S.E.2d 904 (1977).

There is no error in trial court, rather than jury, sentencing defendant. Daniel v. State, 248 Ga. 271, 282 S.E.2d 314 (1981).

Judge, not jury, determines sentence under O.C.G.A. § 17-10-2 and failure to give a charge with regard to sentencing matters is not error. Lewis v. State, 158 Ga. App. 575, 281 S.E.2d 318 (1981).

This section made judicial sentencing in noncapital felony cases mandatory. Bailey v. State, 138 Ga. App. 807, 227 S.E.2d 516 (1976).

Section allows judge to fix sentence in noncapital cases.

- This section allowed the trial judge to fix the sentence in a case in which the death penalty cannot be given. Fleming v. State, 236 Ga. 434, 224 S.E.2d 15 (1976).

Since trial court was required to fix and impose a sentence on the defendant because the defendant was not being sentenced to death or life imprisonment without parole, the trial court did not err in sentencing the defendant on the defendant's convictions for robbery and aggravated assault; accordingly, the defendant's sentence was not void. Daniel v. State, 262 Ga. App. 474, 585 S.E.2d 752 (2003).

Section repeals provision for recommendation by sentencing jury of misdemeanor punishment.

- Enactment of this section, which provided for imposition of punishment by the judge in all cases except those in which the death penalty might be imposed, had been construed to repeal by implication the provisions of Ga. L. 1968, p. 1249, dealing with recommendation of punishment as for misdemeanor by the jury that determines sentence. Tucker v. State, 136 Ga. App. 456, 221 S.E.2d 664 (1975).

No case in which jury imposed sentence in noncapital case.

- No cases have been found wherein the jury had been authorized to impose the sentence in a noncapital felony case under this section. Dent v. State, 136 Ga. App. 366, 221 S.E.2d 228 (1975).

In noncapital cases, jury cannot even recommend sentence.

- Judge has the sole power to determine the punishment and there is no provision except in capital cases for a jury that determines the sentence to make any recommendations as to sentence. Winslow v. State, 135 Ga. App. 776, 219 S.E.2d 21 (1975).

Failure to charge jury that jury might recommend punishment not error.

- Under this section, it was not error to fail to charge that the jury might recommend that the defendant could be punished as for a misdemeanor. Henderson v. State, 141 Ga. App. 430, 233 S.E.2d 505 (1977).

It is error to instruct jury as to possible sentence in felony case before the jury has determined the question of guilt or innocence. Lewis v. State, 158 Ga. App. 575, 281 S.E.2d 318 (1981).

Recidivism not jury issue.

- Since recidivism is an issue only in the sentencing phase of a trial, it follows that the defendant has no right to a jury determination of this issue. LaPalme v. State, 169 Ga. App. 540, 313 S.E.2d 729 (1984); Gary v. State, 186 Ga. App. 231, 366 S.E.2d 833 (1988).

Trial court erred in charging the jury relative to recidivism; the issue of recidivism is considered only in the sentencing phase of a trial. Hanson v. State, 196 Ga. App. 589, 396 S.E.2d 510 (1990).

Prior convictions admissible in sentencing phase.

- Trial court did not err when the court allowed the state to introduce evidence of the defendant's prior record of convictions during the sentencing phase of the trial. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983).

Defendant was not improperly sentenced under the general recidivist statute, O.C.G.A. § 17-10-7(c), as the defendant was served with notice that certified copies of the defendant's three prior felony convictions would be used against the defendant in sentencing as required by O.C.G.A. § 17-10-2(a); once the convictions were offered, the trial court was authorized to sentence the defendant under § 17-10-7. Walker v. State, 268 Ga. App. 669, 602 S.E.2d 351 (2004).

Since the defendant failed to object to the introduction of the defendant's prior convictions at the presentence hearing, the defendant waived any arguments the defendant may have had as to that evidence on appeal; additionally, while two of the defendant's prior convictions were entered from guilty pleas made on the same day, the convictions arose from distinct offenses charged in two different indictments and, thus, the trial court properly considered the convictions for sentencing purposes. Milton v. State, 272 Ga. App. 908, 614 S.E.2d 140 (2005).

Because defense counsel received oral notice under O.C.G.A. § 17-10-2 months before trial that the state would seek recidivist punishment and counsel reviewed the defendant's prior convictions, the defendant was properly sentenced. Maddox v. State, 278 Ga. App. 191, 628 S.E.2d 625 (2006).

In an action in which the defendant was convicted of shoplifting as a felon in accordance with O.C.G.A. § 16-8-14(b)(1)(C), there was no requirement that the prior convictions upon which the conviction and sentence were based be proved beyond a reasonable doubt, as there was an exception under Apprendi for such prior convictions based upon the general principle that prior convictions were generally already proved beyond a reasonable doubt; further, there was no due process violation under U.S. Const., amend. 14 because the defendant received notice of the state's intent to use the prior convictions for sentencing and the defendant had an opportunity to challenge the convictions pursuant to O.C.G.A. § 17-10-2(a). Redd v. State, 281 Ga. App. 272, 635 S.E.2d 870 (2006).

Admission of the defendant's prior convictions during the sentencing phase was harmless beyond a reasonable doubt because the victim of the prior crimes supported the defense's arguments that the defendant had always been quick to admit the defendant's violent acts and that those acts were the result of the defendant's alcoholism, and it undermined the state's attempt to show that the defendant had exhibited a pattern of committing domestic abuse and of financial dependence on women; there was overwhelming evidence of the statutory aggravating circ*mstances supporting the death penalty in the case, and the jury was authorized to consider the similar transaction evidence at the sentencing phase. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010).

Trial court did not err in sentencing the defendant as a recidivist because the defendant failed to rebut the presumption of regularity and failed to object to the form of the evidence of the prior convictions at the pre-sentence hearing and, thus, failed to preserve the issue for review on appeal; the state served the defendant with a list of evidence in aggravation of sentencing and specifically invoked the statutory recidivist sentencing provisions, and at the pre-sentence hearing, the trial court had copies of the prior convictions, but defense counsel never objected to the consideration of any of the listed offenses or argued that the state was required to introduce the prior convictions into evidence. Wells v. State, 313 Ga. App. 528, 722 S.E.2d 133 (2012).

Prior convictions inadmissible.

- In sentencing the defendant for child molestation, the trial court erred in considering the defendant's prior misdemeanor convictions for solicitation of sodomy and obscene language. Sanders v. State, 230 Ga. App. 176, 495 S.E.2d 653 (1998).

Dismissal of jury not mandatory and failure to dismiss not error.

- Language that the trial judge "shall dismiss the jury" is directory only and is for the sole purpose of permitting the jury to disburse and not require the jury to remain in a jury box during the progress of the presentence hearing. Any failure on the part of the trial judge to dismiss the jury at this stage of the proceeding, if an error, does not in any way affect the indictment, trial, and conviction of the defendant, and if an error, is one of which the defendant has no right to complain. Whitley v. State, 137 Ga. App. 245, 223 S.E.2d 279 (1976); Ellis v. State, 137 Ga. App. 834, 224 S.E.2d 799 (1976).

Error not harmless when sentence review precluded by fact that jury imposed sentence.

- When the sentence was for more than five years, it cannot be held harmless error for the defendant to have been denied the right to sentencing by the judge, rather than a jury, in view of the provisions of former Code 1933, § 27-2511.1 (former O.C.G.A. § 17-10-6) for review of the sentence by a three-judge panel. Such review would be denied the appellant unless the appellant is sentenced by the judge in accordance with former Code 1933, § 27-2503 (see O.C.G.A. § 17-10-2). Wheeless v. State, 135 Ga. App. 406, 218 S.E.2d 88 (1975).

Notice of intent to present evidence must be given before trial.

- If notice of intent to present evidence was not given until before opening statements to the jury, notice was not given as O.C.G.A. § 17-10-2 requires, before trial, since that section requires that notice be given before trial and jeopardy attaches when the jury is sworn. Sinkfield v. State, 262 Ga. 239, 416 S.E.2d 288 (1992).

Notice of prior felony convictions required.

- Notice of prior felony convictions for discretionary sentencing under O.C.G.A. § 17-10-2 is required before the convictions can be admitted in evidence in aggravation of punishment. Armstrong v. State, 209 Ga. App. 796, 434 S.E.2d 560 (1993).

Imposition of life sentence based on prior conviction inappropriate.

- In a prosecution for selling a controlled substance, imposition of a life sentence was improper since the state notified the defendant of the state's intent to use previous drug convictions as similar transactions evidence but did not inform the defendant of the state's intent to use the prior convictions in seeking the mandatory life sentence. Miller v. State, 219 Ga. App. 284, 464 S.E.2d 860 (1995).

Disclosure statements contained in the state's notice of the state's intent to seek recidivist punishment in combination with the Georgia Crime Information Center report constituted proper notice of the defendant's prior convictions to be used in aggravation of punishment; thus, the notice at issue was not defective. Defendant's conviction on count one of the indictment was the second conviction for violating O.C.G.A. § 16-13-30(b), selling a controlled substance; therefore, the trial court was not prohibited from sentencing the defendant under both O.C.G.A. §§ 16-13-30(d) and17-10-7(c). Johnson v. State, 259 Ga. App. 452, 576 S.E.2d 911 (2003).

If evidence not introduced, counsel not ineffective for not objecting.

- In a prosecution for selling marijuana and possessing marijuana with the intent to distribute, given that the state conceded that the state failed to file notice regarding the state's intent to introduce a prior conviction and such evidence was not introduced, defense counsel could not be found ineffective for failing to object to the introduction of the prior conviction. Allen v. State, 280 Ga. App. 663, 634 S.E.2d 831 (2006).

Notice of intent to consider aggravating circ*mstances ruled inadmissible in determining guilt.

- When the trial court intends to consider matters in aggravation that were ruled inadmissible during the guilt-innocence phase of the trial, the court must inform defense counsel and the prosecution of the plans in this regard before the presentence hearing. Absent such notice from the trial court judge, the defense and the prosecution cannot adequately prepare their cases or summon their witnesses for the presentence hearing. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978).

Commitment to reconsider sentence not equivalent to promise to reduce.

- Trial court's commitment to reconsider the defendant's sentence upon consideration of further information was no promise that the defendant's sentence would be reduced, or if the sentence were not, that the plea could be withdrawn. Brooks v. State, 177 Ga. App. 12, 338 S.E.2d 437 (1985).

Presentence probation reports may not be considered in fixing length of sentence.

- This section did not permit presentence probation reports to be considered by the trial judge in fixing the length of the sentence. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Mills v. State, 244 Ga. 186, 259 S.E.2d 445 (1979).

Presentencing report cannot be used in aggravation in determining sentence; when it is clear from the statements of the trial court that the presentencing report was used to aggravate the sentence, the sentence must be reversed and the case returned for resentencing. Rampley v. State, 166 Ga. App. 521, 304 S.E.2d 574 (1983).

Presentence probation reports are not evidence at presentence hearing.

- Information in presentence probation reports cannot be regarded as evidence either in aggravation or in mitigation as such reports are not a part of the evidence introduced at the presentence hearing. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976).

Presentence probation reports may be considered in deciding whether to suspend or probate sentence. Mills v. State, 244 Ga. 186, 259 S.E.2d 445 (1979).

Disclosure of contents of presentence probation report is in court's discretion.

- It is in the sound discretion of the trial judge whether to reveal the content of the probation officer's report to counsel for the accused and for the state. Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975).

Since this section did not require the content of a presentence probation report to be shared with counsel, it is in the sound discretion of the trial judge whether to reveal the content of the report to counsel for the accused and for the state. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976).

While nothing in the Code requires the contents of presentence investigative reports to be made known to counsel, the trial court nonetheless should exercise sound discretion as to whether to reveal the contents of such reports to counsel for the defendant and for the state. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978).

Notice to defense counsel of matters in probation report adverse to defendant.

- If a presentence probation officer's report contains any matter adverse to the defendant and likely to influence the decision to suspend or probate the sentence, that information should be revealed to defense counsel by the trial judge in advance of the presentence hearing to give the accused an opportunity for explanation or rebuttal. Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975); Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978).

Whether or not to order a probation report is a matter within the discretion of the trial court. Galloway v. State, 165 Ga. App. 536, 301 S.E.2d 894 (1983).

Evidence brought out without objection.

- O.C.G.A. § 17-10-2 does not apply if evidence contained in presentence reports has been brought out without objection during trial, and the appellate court cannot review the procedure used in a presentence hearing if the defendant did not object. Moss v. State, 159 Ga. App. 317, 283 S.E.2d 275 (1981).

Requirement of pretrial notice of evidence inapplicable.

- Requirement for pretrial notice of evidence in aggravation did not apply to a sentence of life imprisonment imposed pursuant to a plea agreement. Powell v. State, 229 Ga. App. 52, 494 S.E.2d 200 (1997).

Plea waived pretrial notice of evidence requirement.

- Requirement for pretrial notice of evidence in aggravation for purposes of sentencing was waived by the defendant's decision to enter a plea and accept a negotiated sentence. Powell v. State, 229 Ga. App. 52, 494 S.E.2d 200 (1997).

Rescheduling of hearing not required.

- Trial judge was not required to reschedule a pre-sentence hearing to allow the defendant an opportunity to possibly present witnesses. Scott v. State, 213 Ga. App. 84, 444 S.E.2d 96 (1994).

Defendant's request for presentence investigation properly denied.

- Since the trial court denied the defendant's request for a presentence investigation on the basis that the court had heard character witnesses and testimony as to family conditions and the defendant's work record and, therefore, the court believed that any additional information would be of little help, there was no abuse of discretion in denying the request. Galloway v. State, 165 Ga. App. 536, 301 S.E.2d 894 (1983).

Denial of request for presentence report when mitigating evidence not presented.

- If a criminal defendant was present during the sentencing phase of the defendant's trial and was afforded every opportunity to present evidence in extenuation or mitigation of punishment, but did not do so, and the trial judge denied the defendant's request for a presentence investigation there was no abuse of discretion in so doing. Thompson v. State, 195 Ga. App. 18, 392 S.E.2d 732 (1990).

Probation report not admissible to determine length of sentence.

- Trial court is authorized under O.C.G.A. §§ 42-8-29 and42-8-34 to consider investigative reports prepared by probation officers for the purpose of deciding whether to suspend or probate all or part of the defendant's sentence, but the court cannot use the reports to determine the length of the sentence. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908 (1983).

Use of presentence report to increase sentence not shown.

- If the transcript of the trial does not affirmatively show that the trial court used the presentence reports for the unlawful purpose of increasing the sentence, rather than for the lawful purpose of determining whether to grant probation, no cause for reversal is shown. Jones v. State, 165 Ga. App. 180, 300 S.E.2d 534 (1983); White v. State, 179 Ga. App. 526, 347 S.E.2d 6 (1986).

While the trial judge is authorized to consider presentence investigative reports for the limited purpose of determining whether to probate all or part of a defendant's sentence, the judge is not authorized to consider such reports in aggravation of punishment. Jones v. State, 165 Ga. App. 180, 300 S.E.2d 534 (1983).

Comparison of reports under O.C.G.A.

§ 17-10-2 with reports made for probation purposes. - Reports under O.C.G.A. § 42-8-34 are more diverse in the type of information the reports may contain since the reports are used only in determining the question of suspension or probation of sentence and need not be shown to counsel, but reports under O.C.G.A. § 17-10-2 are more restrictive and must be shown to counsel before trial. Moss v. State, 159 Ga. App. 317, 283 S.E.2d 275 (1981).

Second conviction for sale of cocaine results in sentence of imprisonment for life, even if the prior offense is not set out in the indictment, if the state complies with the requirement of O.C.G.A. § 17-10-2(a), which provides that only such evidence in aggravation as the state has made known to the defendant prior to the defendant's trial shall be admissible. State v. Hendrixson, 251 Ga. 853, 310 S.E.2d 526 (1984).

The notice requirement of O.C.G.A. § 17-10-2(a) applies to mandating life sentences imposed under O.C.G.A. § 16-13-30(d). Moss v. State, 206 Ga. App. 310, 425 S.E.2d 386 (1992).

Crimes part of res gestae may be considered.

- Defendant urged that crimes for which the defendant had not been convicted were improperly considered by the trial court in imposing the sentences, but the "other crimes" considered by the trial court were a part of the res gestae of the very crimes for which the defendant was to be sentenced; therefore, there was no error. White v. State, 179 Ga. App. 526, 347 S.E.2d 6 (1986).

Sentencing for noncapital offense prior to trial for capital offense.

- Trial court did not err by refusing to sentence the defendant for the noncapital felony offenses of which the defendant was convicted before the commencement of the sentencing phase of the defendant's trial for murder. Holiday v. State, 258 Ga. 393, 369 S.E.2d 241, cert. denied, 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988).

Date of prior offense not controlling.

- Fact that the defendant's prior conviction was for the commission of a crime more than ten years previously did not render the conviction inadmissible in the sentencing hearing since the date that the prior offenses were committed does not control. Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685, 304 Ga. 686, 820 S.E.2d 640 (2018).

Certified copy of prior conviction.

- Although a certified copy of the defendant's prior conviction may not have been attached to the pretrial notice, this would not serve to render inadmissible the certified copy that was subsequently tendered at the sentencing hearing. Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685, 304 Ga. 686, 820 S.E.2d 640 (2018).

Timely notice.

- Receipt by defendant's counsel, prior to jury selection, of notice of the state's intent to use a prior conviction in aggravation of any sentences imposed in the case was timely notice pursuant to O.C.G.A. § 17-10-2. Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685, 304 Ga. 686, 820 S.E.2d 640 (2018); Godfrey v. State, 227 Ga. App. 576, 489 S.E.2d 364 (1997).

Continuance.

- Failure to move for a continuance precluded the defendant from asserting that defense counsel was not afforded ample opportunity to investigate the admissibility of the prior conviction as evidence in aggravation of the sentences imposed. Day v. State, 188 Ga. App. 648, 374 S.E.2d 87 (1988), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685, 304 Ga. 686, 820 S.E.2d 640 (2018); Godfrey v. State, 227 Ga. App. 576, 489 S.E.2d 364 (1997).

Multiple life sentences run concurrently if jury does not otherwise specify.

- When the jury does not specify that two life sentences are to be served consecutively, the trial court can only provide for the sentences to run concurrently. Anglin v. State, 244 Ga. 1, 257 S.E.2d 513 (1979), overruled on other grounds, Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985).

Court may not make sentence run consecutively with other sentence absent jury authorization.

- Trial court is not empowered to impose the jury's sentence to run consecutively to any other sentence that the defendant may be serving, absent express authorization to this effect by the jury. McHugh v. State, 134 Ga. App. 758, 216 S.E.2d 351 (1975).

Consecutive sentencing.

- Trial judge errs in imposing the jury's sentence to be computed after the expiration of a preexisting sentence in another county since the jury did not provide that such sentences were to run consecutively. McHugh v. State, 134 Ga. App. 758, 216 S.E.2d 351 (1975).

If the indictment charges murder, but a manslaughter verdict is returned, the court errs if the court leaves the sentence-making feature of the case to a jury. Lindsey v. State, 135 Ga. App. 122, 218 S.E.2d 30 (1975).

New trial as to sentence if sentence reversed on appeal.

- New trial on the sentence can be held before a new jury if the jury that convicted the accused also sentenced the accused to death, and the sentence was reversed on appeal because of some error that infected the sentence. In such a situation, there can be a remand for a new trial as to the sentence only. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976).

Evidence relating to guilt or innocence is relevant to sentence. Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Court may consider evidence from guilt-innocence phase at presentence hearing.

- Although this section required the trial court to conduct a presentence hearing, during which the court was required to hear additional evidence in extenuation, mitigation, and aggravation of punishment, this did not mean that the court must exclude from the court's consideration the facts and circ*mstances of the crime as revealed to the court by evidence properly admitted during the guilt-innocence phase of the trial. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978).

Defendant must object when not notified of evidence in aggravation.

- Mandatory provision of this section that in presentence hearings only such evidence in aggravation as the state has made known to the defendant prior to the defendant's trial shall be admissible does not apply since the evidence had been brought out without objection during the trial. Mitchell v. State, 136 Ga. App. 390, 221 S.E.2d 465 (1975).

Date of prior conviction, not offense, determines whether judge may consider it.

- Date that prior offenses are committed does not control whether the offenses may be considered under O.C.G.A. § 17-10-2(a). The controlling date is the date of entry of the judgment of conviction and sentence, or date of entry of the plea of guilty, or of nolo contendere. Clark v. State, 146 Ga. App. 799, 247 S.E.2d 489 (1978).

Judicial notice of prior conviction in own court.

- Trial judge may not judicially note a prior conviction in the judge's own court without compliance with this section. Paschal v. State, 139 Ga. App. 842, 229 S.E.2d 795 (1976); Chandler v. State, 143 Ga. App. 608, 239 S.E.2d 158 (1977); Canady v. State, 147 Ga. App. 640, 249 S.E.2d 690 (1978).

Sufficiency of notice that previous convictions will be introduced.

- Clear notice that previous convictions will be introduced at the trial of an accused is required. A notice given prior to a former trial would not be clear notice that the sentences would be introduced at a subsequent de novo trial. Hewell v. State, 238 Ga. 578, 234 S.E.2d 497 (1977); Collins v. State, 145 Ga. App. 341, 243 S.E.2d 716 (1978); Cline v. State, 178 Ga. App. 470, 343 S.E.2d 506 (1986); Beecher v. State, 240 Ga. App. 457, 523 S.E.2d 54 (1999).

Sentence voided by use of prior convictions absent proof of assistance of counsel or waiver.

- Presuming counsel or waiver of counsel from a silent record is impermissible; evidence of prior convictions which fails to disclose assistance of counsel or an intelligent and understanding waiver thereof is illegal, and the admission in evidence at the presentence hearing of such illegal evidence voids the sentence, even in the absence of objection. Harrison v. State, 136 Ga. App. 71, 220 S.E.2d 77 (1975).

Error to consider prior convictions not made known to defendant and obtained without counsel.

- It was error for the trial judge to consider prior convictions in aggravation of punishment when the prior convictions were not made known to the defendant prior to trial and when there was no showing that the defendant had the benefit of counsel or had waived the right to counsel. Van Voltenburg v. State, 138 Ga. App. 628, 227 S.E.2d 451 (1976).

Judge may consider crimes committed after arrest and before trial.

- Under this section, the trial judge in noncapital cases conducts the presentence hearing and may hear evidence including the record of any prior criminal convictions. Considering that a jury is not involved, this language is broad enough to include the conviction and sentence for a crime committed after the crime for which the defendant is on trial, but prior to the trial in which the sentencing hearing is being conducted. Wallace v. State, 134 Ga. App. 708, 215 S.E.2d 703 (1975).

Court may not consider mere rumors as to defendant's conduct.

- Trial court is not authorized by the presentence hearing statute to consider in aggravation mere rumors concerning the conduct of the defendant. Dorsey v. Willis, 242 Ga. 316, 249 S.E.2d 28 (1978).

Trial court may properly consider a defendant's conduct during trial in considering whether to suspend or probate all of the sentence, and such a consideration does not come within the restrictions of O.C.G.A. § 17-10-2. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908 (1983).

Denial of defendant's right to notice of introduction of aggravating evidence cognizable in habeas corpus proceeding.

- Denial of the defendant's right under O.C.G.A. § 17-10-2 to be informed prior to trial that aggravating evidence would be introduced at the sentencing phase of the trial is a denial of the defendant's rights under the laws of this state, albeit not a violation of the defendant's constitutional rights, and is therefore cognizable in a habeas corpus proceeding according to the habeas corpus statute. McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981), overruled on other grounds, West v. Waters, 272 Ga. 591, 533 S.E.2d 88 (2000).

Use of inadmissible report during sentencing.

- When the defendant complained that the state's cross-examination of the defendant's mother at the sentencing phase of the trial incorporated a report from the Department of Family and Children Services that was inadmissible as a consequence of the state's noncompliance with the notice provisions of O.C.G.A. § 17-10-2, it was held that even if the cross-examination was based in part on the report (and not just the defendant's prior terroristic threat conviction), and even if there was not sufficient compliance with that Code section respecting this report to allow the state to use the report in the state's case-in-chief, the state's use of this report to rebut the mother's direct testimony was not barred by that Code section. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992).

No notice requirement as to evidence introduced by defendant.

- Only such evidence in aggravation that the state has made known to the defendant prior to the defendant's trial is admissible. No such limitation is placed on the evidence that the defendant may introduce. Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975).

All aspects of defendant's crime, character, and attitude are admissible, subject to the applicable rules of evidence regarding reliability, to guide the fact-finder in determining an appropriate sentence. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

Evidence of prior record or other criminal acts.

- Under this section, the record of any prior criminal convictions of a defendant, if made known to the defendant prior to the trial, was admissible. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

During the presentence hearing, the state, subject to notice limitations, is allowed to place the defendant's character in issue through the defendant's prior record or other criminal acts. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

In accordance with O.C.G.A. § 17-10-2, the trial court is authorized during the pre-sentence hearing to consider evidence in aggravation of punishment, including the record of any prior criminal convictions provided such evidence has been made known to the defendant prior to the defendant's trial; it was not error to admit the defendant's prior conviction since the state provided notice to defense counsel prior to trial of the state's intent to introduce the prior convictions, and the trial court did not consider the prior convictions in imposing the sentence. Rubi v. State, 258 Ga. App. 815, 575 S.E.2d 719 (2002).

Jury may consider record regardless of dates of prior convictions.

- Jury was entitled to consider the appellant's record as of the time of sentencing, regardless of when the prior convictions were committed. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Evidence of sentences for prior convictions.

- Sentences imposed for prior convictions were admissible into evidence as part of the "convictions" within the meaning of this section. Davis v. State, 241 Ga. 376, 247 S.E.2d 45, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 338 (1978).

Notice must give defendant opportunity to examine prior convictions to be used against defendant.

- All this section required was "clear notice" to an accused of all previous convictions that the state intended to introduce at trial so as to allow a defendant to examine the defendant's record to determine if the convictions are in fact the defendant's, if the defendant was represented by counsel, and any other defect which would render such documents inadmissible during the presentencing phase of the trial. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978), cert. denied, 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

One day's notice sufficient.

- Service of the notice of aggravating circ*mstances upon the appellant on the day prior to trial, and prior to arraignment and jury selection, was timely under the provision of this section. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Prior convictions are sufficiently proved by certified copies of the convictions. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Although indictments are sometimes relevant, indictments are not a prerequisite to admissibility of prior convictions. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Transcript of prior testimony of state's witnesses, plus cross-examination of witnesses, satisfies section.

- In a presentencing hearing in a capital case, the state is not required by O.C.G.A. § 17-10-2 to supply in advance a full prospectus of the expected testimony of every witness to the circ*mstances of the offense; the requirement of that section is satisfied when the defendant receives not only the names of the witnesses but a transcript of their testimony at the guilt/innocence phase of the proceedings, and when the trial court rules that any testimony as to matters not contained in testimony given at the guilt/innocence phase is admissible but is subject to cross-examination by the defendant. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S. Ct. 282, 88 L. Ed. 2d 245 (1985).

Evidence as to guilt or innocence may be considered at hearing.

- Trial court erred in sustaining an objection to the defendant's attempt to testify as to matters occurring at the crime scene since the defendant had not testified at the guilt-innocence phase, but error was harmless as defense made no offer of proof as to what the defendant's testimony would have been and as the trial court gave the defense an opportunity, before the defense rested, to offer any matter that might mitigate the sentence. Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985), cert. denied, 475 U.S. 1090, 106 S. Ct. 1479, 89 L. Ed. 2d 733 (1986).

Testimony of a state psychiatrist who examined the defendant is not irrelevant to the statutory aggravating circ*mstance of murder committed while the offender was engaged in the commission of another capital felony since the psychiatrist testifies in rebuttal to a defense witness who has previously testified as to the defendant's mental condition. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Presentence hearing may include evidence regarding guilt.

- Presentence hearing is for additional evidence and in no way excludes from consideration during sentence the matters heard on the issue of guilt or innocence. Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974), vacated on other grounds, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977).

Requirements as to evidence in aggravation.

- Essentially this section required that evidence in aggravation cannot be used by the state unless the evidence is made known to the defendant prior to trial, and that such evidence is subject to the laws of evidence. Vandable v. State, 127 Ga. App. 306, 193 S.E.2d 197 (1972).

Evidence of recidivism may be introduced only at sentencing phase.

- Under the two-step procedure, one must be indicted as a recidivist in order to impose recidivist punishment, but the recidivism of the accused must not be disclosed during the first phase of the trial and may only be disclosed after conviction at the second phase of the trial. Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974).

Recidivist sentence proper.

- Since the state provided the requisite clear notice to the defendant of all previous convictions that the state sought to introduce at trial, the trial court did not err in imposing a recidivist sentence on the defendant. Richardson v. State, 256 Ga. App. 30, 567 S.E.2d 693 (2002).

Disclosure at first phase is reversible error.

- Disclosure of prior convictions to the jury during the first phase of trial, absent waiver, is reversible error. Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974).

Clear notice should be given of each specific conviction to be introduced.

- This section meant that notice of each specific conviction to be introduced in evidence by the state at the sentencing phase of the trial should be given to the party on trial or the party's attorney. Additionally, the fact that such notice was given should be clear and not cloudy. Gates v. State, 229 Ga. 796, 194 S.E.2d 412 (1972).

Prosecution's notice to defendant of prior convictions the prosecution intended to introduce at sentencing in aggravation of the defendant's punishment by attaching a copy of the defendant's criminal history to a notice was adequate to satisfy the requirements of O.C.G.A. § 17-10-2(a). Greeson v. State, 253 Ga. App. 161, 558 S.E.2d 749 (2002).

Giving of notice of evidence of a conviction record on the day trial commences was not sufficient for the purpose of this section and did not meet the requirement of fair play and sound justice. Queen v. State, 131 Ga. App. 370, 205 S.E.2d 921 (1974).

Offenses in violation of municipal ordinances are admissible in evidence in the sentence hearing. Locklear v. State, 131 Ga. App. 536, 206 S.E.2d 527 (1974).

Record of prior conviction from another state.

- To be admissible in evidence, a record of a prior criminal conviction from another state must be authenticated in accordance with former Code 1933, § 38-627 (see O.C.G.A. § 24-9-922). Strong v. State, 232 Ga. 294, 206 S.E.2d 461 (1974).

If illegal evidence of prior convictions is admitted at presentence trial, sentence is void. Hopper v. Thompson, 232 Ga. 417, 207 S.E.2d 57 (1974).

Improper to show offenses for which defendant charged but not convicted.

- It is improper in a presentence hearing to show that the defendant has been charged with an offense for which the defendant has not been convicted. Banks v. State, 131 Ga. App. 215, 205 S.E.2d 520 (1974).

Evidence of general bad character.

- Nature of the presentence hearing involves the general character of the defendant, and if the state has notified the defendant that such evidence will be admitted, evidence of general bad character may be admitted. Cochran v. State, 144 Ga. App. 820, 242 S.E.2d 735 (1978).

Illegal sentence cannot be rendered valid through waiver.

- Defendant agreed to a sentence that included convictions that should have been merged, and therefore the sentence was void. Defendant improperly gave up the right to a sentencing presentation and argument under O.C.G.A. § 17-10-2 and therefore the case was remanded for sentencing. Wells v. State, 294 Ga. App. 277, 668 S.E.2d 881 (2008).

Jury Sentencing for Capital Cases

Intent.

- General Assembly in this section meant to empower jurors to consider anything as mitigating that the jurors find to be mitigating, without limitation or definition. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288, cert. denied, 439 U.S. 1039, 99 S. Ct. 642, 58 L. Ed. 2d 699 (1978); Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Mitigating circ*mstances were referred to in former Code 1933, §§ 27-2503 and 27-2534.1 (see O.C.G.A. §§ 17-10-2 and17-10-30), but these sections were wholly silent on what those circ*mstances shall be. The conclusion was thus inescapable that the General Assembly meant to empower the jury to consider as mitigating anything the jury found to be mitigating, without limitation or definition. This was a constitutionally valid procedure. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).

Although a habeas corpus petitioner contended that the prosecution misled the jury into believing that the jury's role with regard to the death penalty was merely advisory, no due process violation was shown. The prosecution accurately characterized the jury's death penalty finding as a recommendation in accordance with O.C.G.A. § 17-10-2(c), and the jury was properly advised that the recommendation was binding on the sentencing court in accordance with O.C.G.A. § 17-10-31. Carr v. Schofield, 364 F.3d 1246 (11th Cir. 2004).

Purpose of presentence trial.

- This section provided a scheme for presenting defendant's history to the sentencing authority so that the sentencing authority may make the proper decision as to punishment, considering the status of the defendant at the time of sentencing, not the defendant's status at the moment the defendant committed the crimes for which the defendant was tried. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979).

Purpose of a presentence trial is to introduce different evidence from that at trial to determine guilt or innocence. In a presentence trial, the trier of fact must make a determination as to the sentence to be imposed, taking into consideration all aspects of the crime, the past criminal record or lack thereof, and the defendant's general moral character. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

Consideration of mitigating factors constitutionally required.

- United States Const., amends. 8 and 14 require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, any aspect of a defendant's character or record and any of the circ*mstances of the offense that the defendant proffers as a basis for a sentence less than death. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978).

Mitigating factors considered in all but rarest capital cases.

- United States Const., amends. 8 and 14 require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circ*mstances of the offense that the defendant proffers as a basis for a sentence less than death. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980).

Both former Code 1933, §§ 26-3102 and 27-2503 (see O.C.G.A. §§ 17-10-2(b) and17-10-31) applied only to sentencing phase of capital case. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976).

No presumption of innocence at presentence hearing.

- Defendant stands before the trial court or jury in a presentence trial a convicted felon with no presumption of innocence. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

Preservation of right to speak at the presentence hearing.

- Requiring that a defendant, in order to tell the defendant's story in mitigation of punishment, must forfeit the defendant's right to remain silent during the guilt or innocence phase of the defendant's trial would violate Ga. Const. 1945, Art. I, Sec. I, Para. V (see Ga. Const. 1983, Art. I, Sec. I, Para. XIV). Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975).

Consideration by jury of mitigating and aggravating circ*mstances.

- This section did not impose the additional requirement for sentencing that the jury be instructed that mitigating circ*mstances were to be weighed against aggravating circ*mstances, but instead allowed the jury to consider both. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979).

Mitigating evidence deals with particular defendant.

- Evidence of extenuating or mitigating circ*mstances allowed by former Code 1933, §§ 27-2503 and 27-2534.1 (see O.C.G.A. §§ 17-10-2 and17-10-30) relates to evidence about the particular defendant and does not include evidence involving the death penalty in general. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980).

Constitutionality of excluding exculpatory hearsay whether death penalty may be imposed.

- During the second trial of a convicted defendant to determine whether the death penalty should be imposed, refusal on hearsay grounds to admit testimony to the effect that the accused did not commit the crime may constitute a violation of the due process clause of U.S. Const., amend. 14. Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979), cert. denied, 450 U.S. 936, 101 S. Ct. 1403, 67 L. Ed. 2d 372 (1981).

Judge must clearly instruct jury about mitigating circ*mstances and the option to recommend against death. Chenault v. Stynchcombe, 581 F.2d 444 (5th Cir. 1978).

Trial court's charge to the jury, which stressed that the jury should consider any mitigating evidence and that the jury could impose a sentence less than death for any or no reason, was an appropriate instruction that sufficiently informed the jury of the jury's relevant duties in deciding the defendant's sentence. King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002).

Specific mitigating circ*mstances.

- It is not required that specific mitigating circ*mstances be singled out by the court in giving the court's instructions to the jury. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979).

This section concerned notice of evidence of aggravating circ*mstances first admitted at a presentence hearing, and had absolutely nothing to do with giving notice of an attempt to prove aggravating circ*mstances during the guilt phase of trial. Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465 (1979).

Evidence as to aggravating circ*mstances introduced during the guilt or innocence phase need not be reintroduced in order to authorize the jury to find that one of the statutory aggravating circ*mstances set forth in former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30) existed. Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975).

Life sentence even if aggravating circ*mstances present.

- This section allowed the jury to impose a life sentence even if there are aggravating circ*mstances. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979).

Statutes on which convictions based presumed in effect at time of conviction.

- It is presumed, absent a contrary showing by the defendant, that statutes on which convictions were based were in effect at the time of convictions. Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979).

Procedure if state waives death penalty.

- In cases in which the state has waived imposition of the death penalty, the appropriate procedure is for the trial judge to dismiss the jury and conduct a presentence hearing under subsection (a) of this section. Birks v. State, 237 Ga. 861, 230 S.E.2d 294 (1976).

Procedure if death penalty and life sentence both waived.

- If the state clearly waives the death penalty as well as the life imprisonment of the defendant, the trial judge can properly dismiss the jury and fix sentence upon completion of the presentence hearing. Jessen v. State, 234 Ga. 791, 218 S.E.2d 52 (1975).

Presentence hearing not required if death penalty not sought in murder prosecution.

- Since upon conviction for murder if the death penalty is not sought, the only punishment to be lawfully imposed is that of life imprisonment; thus, there is no necessity to conduct a presentence hearing on the issue of punishment as the trial court possesses no discretion in such an instance. Brown v. State, 246 Ga. 251, 271 S.E.2d 163 (1980).

Charge that jury may recommend mercy when death penalty waived.

- If the state waives the death penalty, a charge that the jury could recommend mercy and thus require a life sentence is incorrect, but not necessarily prejudicial. Birks v. State, 237 Ga. 861, 230 S.E.2d 294 (1976).

Charge to continue proper.

- Trial court properly instructed the jury in the sentencing phase that the jury's "verdict as to penalty (had to) be unanimous," and subsequently directed the jury to continue the jury's deliberations after the jury informed the trial court that the jury could not reach a unanimous verdict; the jury was expected to consider the evidence and to attempt to reach unanimity "'one way or the other"' on the issue of a sentence and, if possible, to unanimously recommend a sentence. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Jury must decide guilt before judge instructs on sentence.

- It is error to instruct the jury as to a possible sentence in a felony case before the jury has determined the question of guilt or innocence. Mayo v. State, 139 Ga. App. 520, 229 S.E.2d 16 (1976); Evans v. State, 146 Ga. App. 480, 246 S.E.2d 482 (1978).

Defendant may conclude argument when death penalty considered.

- After the evidence is closed on both sides in a presentence hearing in which the death penalty is being considered, the defendant may conclude the argument to the jury, even if the defendant presents evidence during the hearing. Beck v. State, 254 Ga. 51, 326 S.E.2d 465, cert. denied, 474 U.S. 872, 106 S. Ct. 195, 88 L. Ed. 2d 164 (1985).

Jury that convicted must also impose sentence. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976).

Test of adequacy of jury charge.

- In considering the adequacy of a jury charge on the sentencing phase of the trial, the ultimate test is whether a reasonable juror, considering the charge as a whole, would know that the juror should consider all the facts and circ*mstances of the case as presented during both phases of the trial, which necessarily include any mitigating and aggravating facts, and then, even though the juror might find one or more of the statutory aggravating circ*mstances to exist, would know that the juror might recommend life imprisonment. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288, cert. denied, 439 U.S. 1039, 99 S. Ct. 642, 58 L. Ed. 2d 699 (1978).

If the court does not fail to make clear to the jury that the jury could recommend a life sentence even if the jury found the existence of a statutory aggravating circ*mstance, the ultimate test is whether a reasonable juror, considering the charge as a whole, would know that the juror should consider all of the facts and circ*mstances of the case as presented during both phases of the trial which necessarily includes any mitigating and aggravating facts, and then, even though the juror might find one or more of the statutory aggravating circ*mstances to exist, would know that the juror might recommend life imprisonment. Young v. Ricketts, 242 Ga. 559, 250 S.E.2d 404 (1978), cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).

What constitutes adequate instruction.

- If the trial court instructs the jury to consider the facts and circ*mstances in mitigation and aggravation, explaining to the jury that mitigating circ*mstances are those which do not excuse the offense, but which in fairness and mercy may reduce the degree of moral culpability or blame, and further instructs the jury that the jurors are free to recommend mercy even if the jurors find aggravating circ*mstances, these instructions allow the jury to examine the defendant's individual characteristics in deciding the defendant's fate and the jury is properly instructed as to what the jury is to consider in determining the sentence. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979).

Instructions on mercy and mitigating circ*mstances adequate.

- By instructing jurors that the jurors could consider mitigating evidence and circ*mstances, that the jurors could return a life sentence for any reason or for no reason, and that the jurors could consider feelings of sympathy or mercy that flow from the evidence, the trial court adequately instructed the jury on mercy and the concept of mitigating circ*mstances generally. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998).

Suggesting to jury that Georgia Supreme Court would approve death sentence.

- Practice of influencing a jury to impose the death penalty by implying that justices of the Georgia Supreme Court would approve such a sentence is error, though sometimes harmless, under the due process clause of U.S. Const., amend. 14. Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22, cert. denied, 449 U.S. 891, 101 S. Ct. 252, 66 L. Ed. 2d 118 (1980).

Instruction for deadlocked jury to continue not suggestion to return death sentence.

- Because a verdict for either death or mercy must be unanimous, and because the jury is not informed of the consequences of the jury's inability to reach a verdict as to sentence, instructions to deliberate further simply do not have the effect of suggesting to a Georgia jury that the jury should return a death sentence. Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Instruction as to invalid aggravating circ*mstance.

- Death sentence was not impaired because the judge instructed the jury with regard to an invalid statutory aggravating circ*mstance, a "substantial history of serious assaultive criminal convictions," for the underlying evidence was nevertheless fully admissible at the sentencing phase under O.C.G.A. § 17-10-2(a), the instructions did not place particular emphasis on the role of statutory aggravating circ*mstances in the jury's ultimate decision, and any possible impact could not fairly be regarded as a constitutional defect in the sentencing process, as nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making the jury's sentencing determination, even though the defendant's prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Imposition of sentence by judge, when jury unable to agree.

- In a murder case, after conviction, because only two sentences can be imposed, life imprisonment or death, if the convicting jury is unable to agree on which of those two sentences to impose, the trial judge must impose the lesser, life imprisonment. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976).

Prior convictions based on pleas may be properly considered in imposing a death sentence. Mathis v. Zant, 744 F. Supp. 272 (N.D. Ga. 1990), vacated in part on other grounds, 975 F.2d 1493 (11th Cir. 1992).

Sentencing authority must have information as to character and circ*mstances of defendant.

- In capital cases, it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the character and individual circ*mstances of a defendant prior to imposition of a death sentence. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Since information is necessary to reasoned sentencing decision.

- Accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Consideration of extraneous matters.

- Trial judge did not err by permitting the state to introduce court records of prior convictions for burglary and assault since the jury based the jury's death sentence on other proper, specified statutory aggravating circ*mstances. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984).

Putting character at issue.

- Conducting a trial on a possession of a firearm charge prior to the sentencing phase and before the same jury that imposed a death sentence on a defendant did not unnecessarily prejudice the jury by impermissibly placing the defendant's character in issue in the sentencing phase since the state could have introduced evidence of the defendant's prior convictions during the sentencing phase. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Appellate Review

Lawful sentence not modifiable on appeal.

- Appellate court is not empowered to modify a sentence which is within the statutory limits and lawfully imposed. Thomas v. State, 139 Ga. App. 364, 228 S.E.2d 386 (1976).

No review if no objection to notice at presentence hearing.

- If no objection to notice is made at the presentence hearing, a subsequent review of that phase is eliminated. Adams v. State, 142 Ga. App. 252, 235 S.E.2d 667 (1977); Wilcox v. State, 153 Ga. App. 719, 266 S.E.2d 356 (1980).

If no objection is made at the presentence hearing, subsequent review of that phase is eliminated. Chapman v. State, 154 Ga. App. 532, 268 S.E.2d 797 (1980).

If no objections were raised at the presentence hearing, the Court of Appeals is precluded from reviewing the proceedings. Williams v. State, 165 Ga. App. 553, 301 S.E.2d 908 (1983); Evans v. State, 177 Ga. App. 572, 340 S.E.2d 620 (1986).

Any lawful evidence which tends to show the motive of the defendant, defendant's lack of remorse, defendant's general moral character, and defendant's predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of O.C.G.A. § 17-10-2. The defendant's failure to object to any lack of notice waives the defendant's right to raise such objections. Fields v. State, 167 Ga. App. 816, 307 S.E.2d 712 (1983).

Pro se defendant's claim that the defendant was not served with a notice of aggravation as required by O.C.G.A. § 17-10-2(a) and that the trial court improperly took notice of the defendant's criminal history was waived as the defendant never objected during pre-sentencing on the ground that the defendant had received no notice. Swain v. State, 268 Ga. App. 135, 601 S.E.2d 491 (2004).

Waiver can result from the failure to object to the consideration of convictions not shown to have been attended by counsel. Golden v. State, 177 Ga. App. 747, 341 S.E.2d 480 (1986).

Because the defendant failed to raise at the sentencing hearing the argument that the trial court erred by sentencing the defendant as a recidivist, appellate review was precluded. Wells v. State, 313 Ga. App. 528, 722 S.E.2d 133 (2012).

Defendant was not denied presentence hearing.

- There is no need for remand because the defendant was not denied a presentence hearing since the court inquired if the defendant or defense counsel knew of any reason why the court should not pass sentence and counsel responded that there was no legal reason sentence should not be imposed and no request was made at that time for a continuance to produce witnesses. McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340, cert. denied, 203 Ga. App. 907, 416 S.E.2d 340 (1992).

Evidence in aggravation without prior notice is grounds for reversal, unless court assures evidence was not used.

- Evidence in aggravation, tendered by the state, which is not disclosed to the defendant prior to trial and which is later admitted as evidence at a presentencing hearing will not be grounds for reversal as to the sentence only if the appellate court is assured that the trial judge did not use such evidence to increase the length of the sentence. Moss v. State, 144 Ga. App. 226, 240 S.E.2d 773 (1977).

If the record shows that prior convictions obtained without benefit of counsel were considered in a presentence hearing, a new trial on the issue of punishment will have to be granted. Knight v. State, 133 Ga. App. 808, 212 S.E.2d 464 (1975).

Presumption as to trial court's sentencing.

- There is a presumption that the trial court did not consider improper matters in fixing the sentence, although the presumption can be weakened by the trial court's failure to disavow any reliance thereon. Watkins v. State, 191 Ga. App. 87, 381 S.E.2d 45 (1989).

Sentence is presumed to be correctly imposed, and defendant has the burden of showing error. Jones v. State, 233 Ga. 662, 212 S.E.2d 832 (1975).

Burden of proof that judge's knowledge of prior convictions in judge's court affected sentence.

- Burden was upon a defendant asserting error under this section to establish affirmatively by the record that the trial judge's knowledge of the defendant's prior convictions in the judge's own court resulted in an increased sentence. Canady v. State, 147 Ga. App. 640, 249 S.E.2d 690 (1978).

Judge sitting without jury presumed to separate legal from illegal evidence.

- If the record has shown that illegal evidence has been considered in the presentence hearing, the appellate courts have generally granted a new trial on the issue of punishment. Nevertheless, there is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching the judge's decision. Workman v. State, 137 Ga. App. 746, 224 S.E.2d 757 (1976).

Although prejudicial and illegal evidence is injected in a defendant's sentence hearing and the sentence defendant receives is harsher than that of a codefendant, if the trial judge sustains objections to such evidence whenever such objections are made, the presumption is that the trial court considered only legal evidence. Welborn v. State, 166 Ga. App. 214, 303 S.E.2d 755 (1983).

Although defendant has served term prior to appeal, if results of conviction may persist and subsequent convictions may carry severe penalties and civil rights may be affected, the Court of Appeals will no longer dismiss but will consider such appeals on their merits. Peach v. State, 168 Ga. App. 55, 308 S.E.2d 60 (1983).

No ineffective assistance of counsel.

- Defendant's attorney did not render ineffective assistance because defense counsel failed to insist that the defendant be afforded an opportunity to address the trial court personally on the subject of sentencing because defense counsel spoke at the sentencing hearing on the defendant's behalf regarding mitigation and punishment. Guyton v. State, 281 Ga. 789, 642 S.E.2d 67 (2007).

Because the defendant failed to show that defense counsel was ineffective in failing to inquire further into the defendant's confusion regarding the state's intent to seek a recidivist sentence under O.C.G.A. § 17-10-7(c), and the defendant was repeatedly advised of the maximum punishment allowed by law upon conviction of the crimes alleged, the trial court properly denied the defendant a new trial. Smith v. State, 289 Ga. App. 742, 658 S.E.2d 156 (2008).

If the trial court fails to conduct a presentence hearing, the judgment of sentence will be reversed, and the case remanded to the trial court for resentencing. King v. State, 168 Ga. App. 291, 308 S.E.2d 612 (1983); Brinson v. State, 201 Ga. App. 80, 410 S.E.2d 50 (1991); Williams v. State, 225 Ga. App. 319, 483 S.E.2d 874 (1997).

Defendant had a right to file a direct appeal from the denial of a petition contending that the defendant's sentence was void because the trial court failed to hold the presentence hearing required by O.C.G.A. § 17-10-2. Williams v. State, 271 Ga. 686, 523 S.E.2d 857 (1999).

Notice of aggravating circ*mstances.

- Trial court did not abuse the court's discretion in denying the defendant's motion for continuance when a month before defendant's capital murder trial in the shooting of a deputy sheriff, the state gave notice of aggravating circ*mstances. Brannan v. State, 275 Ga. 70, 561 S.E.2d 414, cert. denied, 537 U.S. 1021, 123 S. Ct. 541, 154 L. Ed. 2d 429 (2002).

No review of sentence within guidelines.

- Appellate court declined to review the defendant's 30-year sentence because the sentence was within the statutory guidelines; the defendant was found guilty of possessing cocaine with the intent to distribute, the state introduced three prior felony convictions in aggravation of sentencing pursuant to O.C.G.A. § 17-10-2(a), and given the defendant's prior drug convictions and the mandate of O.C.G.A. § 17-10-7(c), the defendant faced a maximum punishment of life in prison under O.C.G.A. § 16-13-30(d). Jackson v. State, 284 Ga. App. 619, 644 S.E.2d 491 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. 2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 706 et seq., 718 et seq. 21A Am. Jur. 2d, Criminal Law, § 822 et seq.

C.J.S.

- 24 C.J.S., Criminal Procedure and Rights of the Accused, §§ 2282 et seq., 2383 et seq.

ALR.

- Right of court to hear evidence for purpose of determining sentence to be imposed, 77 A.L.R. 1211.

Rule of reasonable doubt as applicable to proof of previous conviction for purpose of enhancing punishment, 79 A.L.R. 1337.

Court's right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant, 96 A.L.R.2d 768.

Necessity and sufficiency of question to defendant as to whether he has anything to say why sentence should not be pronounced against him, 96 A.L.R.2d 1292.

Defendant's right to disclosure of presentence report, 40 A.L.R.3d 681.

Court's presentence inquiry as to, or consideration of, accused's intention to appeal, as error, 64 A.L.R.3d 1226.

Defendant's appeal from plea conviction as affected by prosecutor's failure or refusal to dismiss other pending charges, pursuant to plea agreement, until expiration of time for appeal, 86 A.L.R.3d 1262.

Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.

Propriety of sentencing justice's consideration of defendant's failure or refusal to accept plea bargain, 100 A.L.R.3d 834.

Right of convicted defendant or prosecution to receive updated presentence report at sentencing proceedings, 22 A.L.R.5th 660.

Admissibility of victim impact evidence in noncapital state proceedings, 8 A.L.R.7th 6.

Admissibility of testimony at sentencing, within meaning of U.S.S.G. § 6a1.3, which requires such information be relevant and have "sufficient indicia of reliability to support its probable accuracy", 45 A.L.R. Fed. 2d 457.

Admissibility of evidence, other than testimony given at sentencing, within meaning of U.S.S.G. § 6a1.3, which requires such information be relevant and have "sufficient indicia of reliability to support its probable accuracy" - concerning sworn information, 46 A.L.R. Fed. 2d 151.