Head v. State

¶1concurring in part and dissenting in part.

¶2I concur in all but Division 3 (b). As to it I respectfully dissent. Lacking in the record is assurance that a significant item in aggravation of punishment, presented by the State, did not affect the determination of the sentence imposed.

¶3The convictions introduced by the State showed that Head pled guilty to the charges and was placed on probation. At the hearing, the prosecuting attorney orally represented to the court that Head’s probation had been revoked, resulting in his incarceration. Upon inquiry by the court, the prosecuting attorney stated that he did not know why Head’s probation was revoked but that he did receive a longer sentence upon resentencing. Defense counsel did not immediately challenge the accuracy of the additional representations, and the prosecutor recommended that Head be given two consecutive twenty-year sentences for the aggravated assaults and a concurrent twelve-month sentence for criminal trespass. Defense counsel asked for leniency because the offenses committed were crimes of passion, and a sentence of no more than five years’ confinement was requested.

¶4Head objected to the prosecuting attorney’s unexpected oral representation at trial as being inaccurate, when he had the opportunity to tell his counsel during the court’s recess. No admissible evidence was introduced proving his probation had been revoked. The best evidence of a probation revocation would be a certified copy of the revocation order, but the prosecutor’s oral statement was not admissible as any sort of evidence to prove such fact.1 It did not constitute “evidence,” which is what OCGA § 17-10-2 (a) requires.

¶5Head complains that the prosecutor’s statement to the judge was erroneous. The State does not maintain it was accurate. Instead, it avoids the issue by arguing that Head failed to establish that the trial court considered the undocumented representation in sentencing him. To the contrary, the sequence of events that transpired at presentencing shows that the court arrived at its sentencing decision during the recess, after the representation was made by the prosecuting attorney but before its accuracy was challenged by the defense. The record indicates that the court did in fact consider the representation, which was made expressly “in aggravation” of punishment, that defendant had once failed at probation.2

¶6Consequently, the sentences should be vacated and the case remanded to the trial court for possible resentencing.3 The trial court *661should first determine whether a false fact intensified the punishment. If so, then defendant must be resentenced; if not, the original sentence may be reinstated.

¶7The deprivation of liberty must rest on a sound and solid base and not merely on one which is presumed to be free of dependence on unestablished, challenged fact. It is safer to require clarity than to risk covering even unintended error.