Brantley v. State, 44800

• Decision Date: 05 November 1969
• Docket Number: No. 44800,No. 1,44800,1
• Citation: 120 Ga.App. 599,171 S.E.2d 657
• Parties: Roy J. BRANTLEY v. The STATE
• Court: Georgia Court of Appeals

Page 657

171 S.E.2d 657

120 Ga.App. 599

Roy J. BRANTLEY v. The STATE.

No. 44800.

Court of Appeals of Georgia, Division No. 1.

Nov. 5, 1969.

Jess Watson, Margaret Hopkins, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Tony H. Hight, Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

In answer to a certified question from this court the Supreme Court held in Studdard v. State, 225 Ga. 410, 169 S.E.2d 327 that to allow the jury to hear evidence of prior convictions of the accused for the purpose of imposing maximum sentence under Code Ann. § 26-2603(C) without setting out such offenses in the indictment would be a travesty on justice, since in a maximum sentence situation the prior convictions are an element of the offense. Accordingly, the defendant's enumeration of error attacking the submission to the jury of the separate issue of increased punishment, where the indictment included no allegation of prior conviction, is valid, and the judgment meting out the maximum sentence for larceny of an automobile must be

Reversed.

BELL, C.J., and EBERHARDT, J., concur.