Bennett v. State, 49340
| Decision Date | 12 July 1974 |
| Docket Number | No. 3,No. 49340,49340,3 |
| Parties | Roger D. BENNETT v. The STATE |
| Court | Georgia Court of Appeals |
John W. Timmons, Jr., Athens, for appellant.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Athens, Eugene Dabbs, Athens, for appellee.
Syllabus Opinion by the Court
Roger Dale Bennett was indicted and charged with the offense of kidnapping. The indictment, obtained at the October Term, 1973, of the Superior Court of Clarke County, alleged the offense charged as having occurred on May 22nd of that year, and further, in what was termed Count 2, that the defendant had been convicted of a felony, child molestation, punishable by confinement in the penitentiary for the purpose of charging the defendant as a recidivist pursuant to Code § 27-2511, and to which the defendant had filed a plea of guilty and was sentenced to serve 5 years on probation. Upon the trial, the defendant was convicted of kidnapping and sentenced to serve 20 years, the last 5 years of which were to be served on probation. The defendant appealed. Held:
1. Pursuant to the holding of the Supreme Court in Landers v. Smith, 226 Ga. 274, 275(3), 174 S.E.2d 427, 429, Code § 27-2511 and holding 'that in order to sentence a prisoner according to this Code section, the prior convictions relied on must be placed in the indictment and read to the jury before the principal issue of guilt or innocence is determined,' the trial judge in the present case read the indictment to the jury over the objection of the defendant. The Act of 1970 (effective July 1, 1970) was passed by the Legislature (Ga.L.1970, p. 949; Code Ann. § 27-2534) providing for a jury determination of punishment in a separate hearing after the jury on the trial had made a determination of guilt, and for notice to the defendant as to any prior convictions intended to be introduced by the state at the sentence hearing. The Supreme Court of this state, on January 7, 1974, after the trial and sentence of the case now before this court, rendered a decision, Black v. Caldwell (also Couch v. Caldwell, and Riggins v. Stynchcombe), 231 Ga. 589, 203 S.E.2d 208, holding that 'Under our 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,' and 'that since July 1, 1970, making such a disclosure without a waiver during the first phase of the trial is reversible error.' We are...
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Cody v. State
...Ga.App. 516, 518(2), 699 S.E.2d 831 (2010); Johnson v. State, 272 Ga.App. 294, 295(3), 612 S.E.2d 29 (2005); Bennett v. State, 132 Ga.App. 397, 398–399(3), 208 S.E.2d 181 (1974). 36.Cook, supra, 305 Ga.App. at 518(2), 699 S.E.2d 831. 37.Paige v. State, 277 Ga.App. 687, 688–689(2), 627 S.E.2......
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Hernandez v. State, 73705
...a felony and sentenced to confinement. OCGA § 17-10-7(a). Defendant's contention is controlled adversely to him by Bennett v. State, 132 Ga.App. 397, 398(3), 208 S.E.2d 181 and Tankersley v. State, 155 Ga.App. 917, 922(13), 273 S.E.2d Judgment affirmed. SOGNIER, J., concurs. BEASLEY, J., co......
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Tankersley v. State
...provisions of Code Ann. § 27-2511. This assertion is controlled adversely to appellant by the opinion of this court in Bennett v. State, 132 Ga.App. 397(3), 208 S.E.2d 181. 14. In his final enumeration of error appellant argues that "(t)he court erred in not requiring the state to submit ce......
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Johnson v. State, A04A1447.
...him as a recidivist under OCGA § 17-10-7(a). Webb v. State, 251 Ga.App. 414, 416(3), 554 S.E.2d 563 (2001); Bennett v. State, 132 Ga.App. 397, 399(3), 208 S.E.2d 181 (1974). This enumeration is thus without 4. Johnson next contends the trial court erred in denying his extraordinary motion a......