State v. Carter, 70265

• Decision Date: 04 June 1985
• Docket Number: No. 70265,70265
• Citation: 332 S.E.2d 349,175 Ga.App. 38
• Parties: The STATE v. CARTER.
• Court: Georgia Court of Appeals

Page 349

332 S.E.2d 349

175 Ga.App. 38

The STATE v. CARTER.

No. 70265.

Court of Appeals of Georgia.

June 4, 1985.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellant.

Michael G. Schiavone, Savannah, for appellee.

BIRDSONG, Presiding Judge.

The sole question in this appeal is whether the trial court erred in sentencing the appellee Carter, a sixth time recidivist felon, to a term of twenty years with twelve to serve and the remaining eight years probated.

The state contends that under OCGA § 17-10-7(b), the habitual offender statute, the trial court must sentence the fourth time recidivist felon to the maximum sentence for the crime without probation. We have previously held the fourth time felon may receive a sentence of probation, in Brooks v. State, 165 Ga.App. 115, 117, 299 S.E.2d 167 (1983); Jackson v. State, 158 Ga.App. 530, 532, 281 S.E.2d 252 (1981); and State v. O'Neal, 156 Ga.App. 384, 386, 274 S.E.2d 575 (1980). In each of these cases, the Supreme Court case of Knight v. State, 243 Ga. 770, 772-775, 257 S.E.2d 182 served as authority; but the issue is not one which is made crystal clear either in the statute or in the Knight case. This court suggested as much in State v. Baldwin, 167 Ga.App. 737, 741, 307 S.E.2d 679 (1983), a second offender case, where we said: "[W]e need not decide in the context of the instant case whether certain decisions of the Court of Appeals have erroneously misinterpreted and extended the holding of Knight and the applicability of OCGA § 17-10-1 (Code Ann. § 27-2502) to fourth offender recidivists. Under OCGA § 17-10-7(b) (Code Ann. § 27-2511), one convicted of a fourth offense shall serve the maximum time provided in the sentence of the judge based upon said conviction and shall not even be eligible for parole until the maximum sentence is served. Knight v. State, supra 243 Ga. at 774, 257 S.E.2d 182. Compare State v. O'Neal, supra 156 Ga.App. at 386, 274 S.E.2d 575; Jackson v. State, 158 Ga.App. 530, 532(3), 281 S.E.2d 252 (1981). The question of the continued viability of those cases applying Knight to fourth offender sentences must await an appeal in which resolution of that issue is squarely presented."

Knight v. State, supra, is a case dealing with sentencing of a second offender recidivist under Code § 27-2511 (now OCGA § 17-10-7). The remarks of the Supreme Court insofar as they refer to fourth offender recidivists are cryptic: "It is only logical that if the legislature had intended that a conviction of a second offense under § 27-2511 should result in a sentence that could not be suspended or probated, it would have said so.... Furthermore, the language of § 27-2511 indicates that such a result was not intended for second offenders. One convicted of a second offense is to be 'sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted.'... One convicted of a fourth offense shall 'serve the maximum time provided in the sentence of the judge based upon said conviction' and shall not even be eligible for parole until the maximum sentence is served." (Emphasis supplied.)

Knight has been taken to mean a fourth offender felon may be sentenced to probation. In State v. O'Neal, supra, 156 Ga.App. p. 386, 274 S.E.2d 575, we held that although the statute (§ 17-10-7) mandates that a second offender be sentenced to the maximum punishment, there is no limitation in the statute on the trial court's authority under § 17-10-7(a) to grant probation of such a sentence, and "[t]his reasoning is equally applicable to a fourth offender recidivist who, under [§ 17-10-7(b) ] is not eligible for parole until the maximum sentence has been served. Probation is not parole. While there is a limitation on parole in [§ 17-10-7(b) ], there is no such limitation on a trial judge's authority to probate a sentence in [§ 17-10-7(b) ]."

On study of the statute, we agree with the conclusion in the Brooks, Jackson, and O'Neal cases that a fourth offender felon may receive a probated sentence, but not under the reasoning stated.

OCGA §§ 17-10-7(a) and 17-10-7(b) were enacted together and must be read together. See Knight, supra, 243 Ga. p. 773, 257 S.E.2d 182; 82 C.J.S., Statutes, § 345, p. 691. In fact, the original enactment, under which Knight and O'Neal were decided, is one entire paragraph with no subsections (former Code Ann. § 27-2511). OCGA § 17-10-7(a) provides that "[a]ny person convicted of a felony ... who shall afterwards commit a crime punishable by confinement ... [i.e., not necessarily a felony] shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense ... [not necessarily a felony], provided that, unless otherwise provided by law, the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense." (Emphasis supplied.)

This language does not limit its application to second offenders only. Subsection (b) of the statute refers specifically to one previously convicted of three or more felonies, and provides that such person "must, upon conviction for such fourth [felony] or for subsequent [felony], serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served." Subsection (b) does not provide or imply that "the maximum time provided in the sentence of the judge" may not include a sentence of probation, as it easily could have provided if it had so intended.

We think subsection (a), in all its provisions including giving the trial judge discretion to probate or suspend the maximum sentence, refers to all repeat offenders, whether second or fourth time offenders. This is evident from the fact that subsection (a) establishes that "any person" who is a repeat offender "shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense" the trial judge may, in his discretion, probate or suspend the maximum sentence presented for the offense (emphasis supplied); subsection (b) makes no such provision but is readily inferred, by all the cases, to likewise require that the longest period of time prescribed for punishment of the offense be awarded. Instead, subsection (b) provides that, upon conviction for a fourth or subsequent felony, the felon "must ... serve the maximum time provided in the sentence of the judge based upon such conviction...." (Emphasis supplied.) This is quite different from saying the...