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168 Ga. App. 598

310 S.E.2d 2

McCoy v. State

Court of Appeals of Georgia

Decided October 3, 1983

Court of Appeals of Georgia · decided 1983-10-03

Cited by 9 later decisions — most recently January 1992

3 federal appellate · 4 state decisions

Key passage — most relied on by later courts

“The position adopted by the [S]tate at the sentencing hearing was that the offenses charged in the indictment for which [Sears] was on trial could be considered in determining his status as a recidivist. . . . [T]his argument . .. was clearly erroneous. [Cits.]”

quoted by 1 later decision, including 202 Ga. App. 352 - State v. Sears

Relies on Croker v. Smith

Good law ✅— No negative treatment on recordhow we know

Decided 1983-10-03

View the full empirical analysis of this case →

¶1On Motion for Rehearing.

¶2In a motion for rehearing, the defendant contends that the trial court improperly sentenced him as a recidivist because in doing so it considered convictions not yet final. The position adopted by the state at the sentencing hearing was that the offenses charged in the *599indictment for which the defendant was on trial could be considered in determining his status as a recidivist. The transcript suggests that the trial court accepted this argument, although it was clearly erroneous. See OCGA § 17-10-7 (Code Ann. § 27-2511); Croker v. Smith, 225 Ga. 529 (4) (169 SE2d 787) (1969).

¶3However, the state also established without objection that the defendant had been convicted and sentenced to confinement for a 1977 robbery, and this fact was properly alleged in the indictment. Thus, the trial court was both authorized and required to sentence the defendant as a second offender pursuant to OCGA § 17-10-7 (Code Ann. § 27-2511).

¶4Motion for rehearing denied.

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