Riggins v. Stynchcombe, s. 28139

• Decision Date: 07 January 1974
• Docket Number: 28318 and 28353,Nos. 28139,s. 28139
• Citation: 231 Ga. 589,203 S.E.2d 208
• Parties: Robert J. RIGGINS v. Le Roy STYNCHCOMBE. Jim David COUCH v. E. B. CALDWELL. Bobby L. BLACK v. E. B. CALDWELL.
• Court: Georgia Supreme Court

Page 208

203 S.E.2d 208

231 Ga. 589

Robert J. RIGGINS v. Le Roy STYNCHCOMBE.

Jim David COUCH v. E. B. CALDWELL.

Bobby L. BLACK v. E. B. CALDWELL.

Nos. 28139, 28318 and 28353.

Supreme Court of Georgia.

Jan. 7, 1974.

Rehearing Denied Jan. 28, 1974 in No. 28139.

Robert J. Riggins, pro se.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Morris H. Rosenberg, Carter Goode, Arthur K. Bolton, Atty. Gen., Atlanta, for Le Roy Stynchcombe.

James C. Bonner, Jr., Jackson, for Jim David Couch.

Guy B. Scott, Jr., Athens, for Bobby L. Black.

Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys. Gen., Atlanta, for E. B. Caldwell. Syllabus Opinion by the Court

GUNTER, Justice.

These three habeas corpus appeals raise related and difficult issues.

In No. 28353, Black was indicted and convicted of theft of a motor vehicle, the crime having occurred on September 24, 1971. The indictment did not charge him with any prior convictions. However, at the sentencing phase of the trial pursuant to our two-step felony procedure, evidence was introduced showing prior convictions, and the jury returned a sentence of twenty years. See Code Ann. § 26-1813(b). Black's contention in the habeas corpus court and here is that the twenty-year sentence was invalid, because he was only indicted for and convicted of one motor vehicle theft, the maximum punishment for such crime under Code Ann. § 26-1813(a) being seven years.

In No. 28318, Couch was indicted and convicted of theft of a motor vehicle, the crime having occurred on April 6, 1972. The indictment did not charge Couch with any prior convictions. However, at the sentencing phase of the trial pursuant to our two-step felony procedure, evidence was introduced showing prior convictions, and the jury returned a sentence of fifteen years. See Code Ann. § 26-1813(b). Couch's contention, like Black's is that the fifteen year sentence was invalid because he was only indicted for and convicted of one motor vehicle theft, the maximum punishment for such crime under Code Ann. § 26-1813(a) being seven years.

In No. 28139, Riggins was indicted and convicted of theft of a motor vehicle, the crime having occurred on November 20, 1971. The indictment in this case differed from those in the other two cases in that the indictment alleged two prior convictions for larceny of an automobile in accordance with Code Ann. § 26-1813(b). Riggins' contention in the habeas corpus court and here is that the prior convictions, alleged and contained in the indictment, were improperly used to convict him of the crime for which he was being tried, thereby 'prejudicing his trial and subjecting him to double jeopardy'.

Thus we see that in the Black and Couch cases prior convictions were not alleged in the indictment and were not introduced in evidence during the guilty-innocent phase of the trial under our two-step felony procedure which went into effect on July 1, 1970. However, Black and Couch were given notice at the beginning of their trials that their prior convictions would be used against them in the second or sentencing phase of the trials. See Code Ann. § 27-2534. The problem is that Black and Couch contend that even with two prior convictions having been proved during the sentencing phase of the trial, it was within the province of the jury to assess a sentence of not less than three years nor more than seven years pursuant to Code Ann. § 26-1813(a), and that the sole purpose of introducing prior convictions at the sentencing phase was to assist the jury in arriving at a sentence between the minimum of three years and the maximum of seven years. The state's contention is that since the effective date of the two-step felony procedure statute, it is legally improper to allege and prove prior convictions during the guilty-innocent phase of the trial; that alleging and proving such prior convictions during the first phase puts the accused's character and history as an habitual criminal in issue before the jury, thereby depriving the accused of a fair trial on the issue of guilt or innocence of the crime for which he is currently being tried; and that the proper procedure under the two-step statute is to withhold evidence of prior convictions during the first phase and only present such evidence during the second or sentencing phase of a trial.

The habeas corpus judges, in two separate jurisdictions, both held in the Black and Couch cases that since July 1, 1970, the effective date of the two-step felony procedure statute (Code Ann. § 27-2534), it was no longer necessary to allege prior convictions in the indictment and prove prior convictions as an element of the crime charged in the indictment; and that the mere giving of notice to the accused at the beginning of the trial that prior convictions would be used against him in the sentencing phase of the trial was enough to activate the increased sentence provisions, in excess of a maximum of seven years, contained in Code Ann. § 26-1813(b).

In Riggins' case the habeas corpus judge in still another jurisdiction held that under this court's decision in Studdard v. State, 225 Ga. 410, 169 S.E.2d 327, it was necessary for the State to allege prior convictions in the indictment and prove them as an element of the crime charged in order to activate the increased penalty provisions of Code Ann. § 26-1813(b) applicable to an habitual criminal. Riggins' case was tried in April, 1972, subsequent to the effective date of the two-step felony procedure statute.

Code Ann. § 26-1813 (Ga.Laws 1969, pp. 857, 861) was in effect at the time of the Studdard decision by this court in 1969. However, the two-step felony procedure statute (Code Ann. § 27-2534) had not been enacted when Studdard was decided; the latter was enacted in 1970 and became effective July 1, 1970.

This court has not ruled on this issue since Studdard and has not heretofore given consideration to the effect of the two-step felony procedure statute in this context. See Croker v. Smith, 225 Ga. 529, ...