Armstrong v. State
| Decision Date | 16 May 1994 |
| Docket Number | No. S93G1827,S93G1827 |
| Parties | ARMSTRONG v. The STATE. |
| Court | Georgia Supreme Court |
Neil L. Heimanson, Darien, for Armstrong.
Dupont K. Cheney, Dist. Atty., Atlantic Judicial Circuit, Charles D. Howard, Asst. Dist. Atty., Hinesville, for the State.
Defendant was convicted for the sale of crack cocaine and sentenced to life imprisonment in accordance with OCGA § 16-13-30(d). On appeal to the Court of Appeals, defendant asserted the state did not give him notice pursuant to OCGA § 17-10-2(a) that it intended to use his prior drug conviction in aggravation of punishment. The Court of Appeals affirmed, holding that the state need not give a repeat drug offender notice that it plans to use a prior drug conviction in aggravation. Armstrong v. State, 209 Ga.App. 796, 434 S.E.2d 560 (1993). In a special concurrence, three judges disagreed with the majority's conclusion that notice of aggravation need not be given to a repeat drug offender, but determined that defendant received the requisite notice because he was advised of the state's intent to present similar transaction evidence at trial. Id. We granted certiorari to review the opinion of the Court of Appeals.
1. Edwards v. State, 260 Ga. 121, 122, 390 S.E.2d 580 (1990). We now so hold and reiterate that if a life sentence is to be imposed under OCGA § 16-13-30(d), the state must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2(a).
2. Providing notice of intent to present similar transaction evidence does not vitiate the state's need to give notice that it plans to use a prior conviction in aggravation of punishment. The purpose of § 17-10-2 is to give defendant a chance Roberts v. State, 252 Ga. 227, 240(11), 314 S.E.2d 83 (1984). This purpose is not served by the similar transaction notice.
When a defendant is given notice that a conviction will be used in aggravation of punishment, he can challenge the validity of the conviction, not its similarity. Roberts v. State, supra. Unless given notice of intent to use a previous conviction in aggravation of punishment, a defendant will not "be on notice" that he should explore defects which could render the document inadmissible. Id. It follows that the state cannot fulfill its responsibility under OCGA § 17-10-2(a) by relying solely on a notice of similar transactions. Edwards v. State, supra. Cf. Moss v. State, 206 Ga.App. 310, 312, 425 S.E.2d 386 (1992) (...
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