State v. Hendrixson, 40200
| Decision Date | 05 January 1984 |
| Docket Number | No. 40200,40200 |
| Citation | 251 Ga. 853,310 S.E.2d 526 |
| Parties | The STATE v. HENDRIXSON. |
| Court | Georgia Supreme Court |
Michael H. Crawford, Asst. Dist. Atty., Clarkesville, for the state.
Timothy P. Healey, Clarkesville, for Jimmie Lou Hendrixson.
Hendrixson was arrested on two occasions for separate sales of cocaine, a controlled substance. She was convicted and sentenced to 15 years imprisonment for the offenses culminating in the first arrest. Thereafter, she was tried and convicted for the second series of offenses. The second conviction resulted in a sentence of imprisonment for life, under the provisions of OCGA § 16-13-30(d) (Code Ann. § 79A-811).
On appeal, the Court of Appeals vacated the life sentence on the ground that the prior offenses were not set out in the indictment, relying upon Riggins v. Stynchcombe, 231 Ga. 589, 592-593, 203 S.E.2d 208 (1974), as follows: "For one to receive recidivist punishment he must have been indicted under a recidivist statute, his prior convictions having been considered by the Grand Jury and having been included in the indictment." Hendrixson v. State, 167 Ga.App. 516, 517, 306 S.E.2d 349 (1983).
We granted certiorari to consider whether or not the rule in Riggins, supra, should be applied to sentencing pursuant to OCGA § 16-13-30(d) (Code Ann § 79A-811), which provides: "Upon conviction of a second or subsequent offense, he shall be imprisoned for life."
* * *
* * *
At the outset, it must be noted that Riggins arose during the short life of a two-step felony sentencing procedure created by former Code Ann. § 26-1813(b), (Ga.L.1969, p. 857, 863) wherein the jury first determined guilt, and then heard matters in aggravation or mitigation, prior to imposing sentence. That procedure was supplanted by Ga.L.1974, p. 352, providing for sentencing by the presiding judge, except in death penalty cases. OCGA § 17-10-2 (Code Ann., § 27-2503).
* * *
* * *
The question remains, then, as to the import of the language of OCGA § 16-13-30(d) (Code Ann., § 79A-811), "Upon conviction of a second or subsequent offense, he shall be imprisoned for life." Is this language sufficient to create a separate and independent offense, and thus require an allegation relative to the earlier offense in the indictment? Or is it merely a direction as to the imposition of punishment under specified aggravated circumstances?
We hold it as the latter, there being no statutory prerequisite as to a conviction which antedates the offense for which the accused is sentenced. Thus it falls within the category of other legislative directions as to punishment, such as mandatory minimum terms of imprisonment for subsequent armed robberies (OCGA § 16-8-41 (Code Ann., §§ 26-2502, 26-2503)) and burglaries (OCGA § 16-7-1 (Code Ann., § 26-1601)).
Because Riggins stands for the proposition that it is error to disclose to the jury prior convictions before a determination of guilt, (231 Ga. at 592, 203 S.E.2d 208) the only purpose for their inclusion in the indictment is to give to the accused unmistakable advance warning that the prior convictions will be used against him at sentencing.
The substance of this caveat is avoided, however, in a manner different from inclusion of prior offenses within an indictment by the 1974 Act, OCGA § 17-10-2(a) (Code Ann., § 27-2503), which provides: "In the hearing the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contenere of the defendant, or the absence of any prior conviction and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible." (Emphasis supplied.)
We note that we have reached a similar result in a case...
To continue reading
Request your trial
-
Stephens v. State
... ... See Mays v. State, 262 Ga. 90, 91-92, 414 S.E.2d 481 (1992); State v. Hendrixson, 251 Ga. 853, ... Page 565 ... 854-55, 310 S.E.2d 526 (1984); OCGA § 17-10-2 ... McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct ... ...
-
Nordahl v. State
...S.E.2d 109 (1987) ; see Riggins v. Stynchcombe , 231 Ga. 589, 592-93, 203 S.E.2d 208 (1974), disapproved of by State v. Hendrixson , 251 Ga. 853, 854, 310 S.E.2d 526 (1984).16 See OCGA § 17-10-2.17 Favors , 182 Ga. App. at 179 (1), 355 S.E.2d 109 ; see Hendrixson , 251 Ga. at 854, 310 S.E.2......
-
Rhodes v. State
...to the accused unmistakable advance warning that the prior convictions will be used against him at sentencing." State v. Hendrixson, 251 Ga. 853, 854, 310 S.E.2d 526 (1984). "[I]t is not required that the prior convictions be included in the indictment but only that the accused receive noti......
-
Martin v. State
...jury first determined guilt, and then heard matters in aggravation or mitigation, prior to imposing sentence." State v. Hendrixson , 251 Ga. 853, 854, 310 S.E.2d 526 (1984) (discussing Black sub. nom Riggins v. Stynchcombe, 231 Ga. 589, 203 S.E.2d 208 (1974) ). However, "[s]ince 1974 when G......