Cook v. The State, A10A1550.
| Decision Date | 04 August 2010 |
| Docket Number | No. A10A1550.,A10A1550. |
| Citation | 699 S.E.2d 831,305 Ga.App. 516 |
| Parties | COOKv.The STATE. |
| Court | Georgia Court of Appeals |
Marcus Cook, pro se.
Tommy K. Floyd, Dist. Atty., Atha H. Pryor, Asst. Dist. Atty., for Appellee.
A jury convicted Marcus Cook of one count of burglary (OCGA § 16-7-1(a)). Cook, proceeding pro se, appeals from the trial court's denial of his motion to vacate void sentence, contending that his recidivist sentence is void because the trial court erred in considering (i) a prior felony conviction that was admitted as similar transaction evidence and (ii) a separate felony conviction for which he received a probated sentence.1 Discerning no error, we affirm.
This case presents a question of law, which we review de novo on appeal. See O'Neal v. State, 285 Ga. 361, 362, 677 S.E.2d 90 (2009).
Prior to trial, the State filed a notice of intent to present evidence of Cook's prior felony convictions in aggravation of sentence pursuant to OCGA §§ 17-10-2 and 17-10-7.2 The notice, which was served upon defense counsel, referred to the following crimes: (1) a 1993 burglary, (2) a 1995 burglary, (3) a 1996 burglary, (4) a 1998 interference with government property, and (5) a 1998 felony obstruction of an officer. Pursuant to the State's notice of intent to present three prior burglary convictions as similar transaction evidence, the trial court admitted a 1994 burglary conviction for the purpose of showing Cook's intent and bent of mind. During the sentencing hearing, for purposes of aggravation of punishment and for recidivist treatment, the State introduced, and the trial court admitted, without objection, Cook's five prior felony convictions, including the burglary conviction that had been admitted during the guilt-innocence phase of the trial. The trial court expressly treated Cook as a recidivist, and sentenced him to twenty years, ten years in confinement and the remaining ten years to be served on probation, without eligibility for parole. OCGA § 17-10-7(a) and (c).
1. Cook argues that his sentence is void because during the sentencing hearing, the trial court considered a prior burglary conviction that had previously been admitted as similar transaction evidence at trial. As such, Cook contends that the State's use of the prior felony conviction in the guilt-innocence phase violated the dual use restrictions set forth in King v. State, 169 Ga.App. 444, 313 S.E.2d 144 (1984). We disagree.
Although Cook did not object on these grounds below, the issue is not waived on appeal. See Johnson v. State, 298 Ga.App. 639, 644(4), 680 S.E.2d 675 (2009) (). In King v. State, supra, we held that the State cannot use a prior felony conviction to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence to the maximum punishment for the offense under the recidivist statute. Here, the State did not use Cook's prior burglary conviction to establish an element of the instant burglary, and, therefore King is inapposite to these facts. Further, nothing in the burglary statute limits the use of prior convictions to the guilt- innocence phase such that they cannot be used again at sentencing. OCGA § 16-7-1(a); see also Morgan v. State, 277 Ga.App. 670, 672(2), 627 S.E.2d 413 (2006) ().
2. Cook contends that the trial court was not authorized to enhance his sentence based upon a probated sentence because OCGA § 17-10-7(a) requires that he be “sentenced to confinement in a penal institution.” We disagree.
It is undisputed that Cook had five felony convictions, four for which he received a sentence of incarceration. For felony obstruction of an officer, Cook received four years probation. In light of the foregoing, the trial court was required to sentence him to twenty years, the maximum sentence for burglary (OCGA § 16-7-1(a)). See State v. Chambers, 275 Ga.App. 666, 621 S.E.2d 588 (2005) (). See also OCGA § 17-10-7(c) (...
To continue reading
Request your trial
-
Von Thomas v. State
...up” claim) as an example of a void sentence challenge, i.e., that the sentence imposed was not allowed by law); Cook v. State, 305 Ga.App. 516, 517(1), 699 S.E.2d 831 (2010); Johnson, 298 Ga.App. at 645(4)(b), 680 S.E.2d 675;Wyche v. State, 291 Ga.App. 165, 167(3), n. 2, 661 S.E.2d 226 (200......
-
Hillman v. Johnson
...but then distinguishing the case at hand include Ray v. State, 317 Ga.App. 197, 198–199, 729 S.E.2d 610 (2012) ; Cook v. State, 305 Ga.App. 516, 517, 699 S.E.2d 831 (2010) ; Raymond v. State, 298 Ga.App. 549, 552–553, 680 S.E.2d 598 (2009) ; Tatum v. State, 297 Ga.App. 550, 551–552, 677 S.E......
-
Cody v. State
...are based on more than one separate act or transaction, no merger is required”). 34. See id. 35. See, e.g., Cook v. State, 305 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.......
-
In The Interest Of J.D., A Child.
... ... In the Interest of R.J.S., 277 Ga.App. 74, 75, 625 S.E.2d 485 (2005); ... Baysinger v. State, 257 Ga.App. 273, 274(2), 570 S.E.2d 593 (2002). 5. OCGA § ... ...