From Casetext: Smarter Legal Research

Gary v. State

Court of Appeals of Georgia
Mar 4, 1988
366 S.E.2d 833 (Ga. Ct. App. 1988)

Opinion

75711.

DECIDED MARCH 4, 1988.

Shoplifting. Clarke Superior Court. Before Judge Barrow.

Timothy W. Floyd, Sara F. Miller, Donald T. Wells, Jr., for appellant.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.


Defendant appeals his conviction for theft by shoplifting after being sentenced as a recidivist under the authority of OCGA § 16-8-14 (b) (1) (C). Held:

In his sole enumeration of error, defendant contends the trial court erred in dismissing the jury after a verdict had been rendered and making a determination without the intervention of a jury as to the recidivist counts of the indictment. This contention is without merit.

In cases such as the one sub judice, "the trial court alone determines the punishment to be imposed. See OCGA § 17-10-2 (Code Ann. § 27-2503). Since recidivism is an issue only in the sentencing phase of a trial (see Parrish v. State, 160 Ga. App. 601 (7) ( 287 S.E.2d 603) (1981)), it follows that defendant had no right to a jury determination of this issue. See Jackson v. State, 158 Ga. App. 702 (6) ( 282 S.E.2d 181) (1981)." LaPalme v. State, 169 Ga. App. 540, 541 (4) ( 313 S.E.2d 729).

Judgment affirmed. Sognier and Beasley, JJ., concur.

DECIDED MARCH 4, 1988.


Summaries of

Gary v. State

Court of Appeals of Georgia
Mar 4, 1988
366 S.E.2d 833 (Ga. Ct. App. 1988)
Case details for

Gary v. State

Case Details

Full title:GARY v. THE STATE

Court:Court of Appeals of Georgia

Date published: Mar 4, 1988

Citations

366 S.E.2d 833 (Ga. Ct. App. 1988)
186 Ga. App. 231

Citing Cases

State v. Freeman

The validity of this conclusion is supported by the fact that in cases such as this a "defendant had no right…

Hanson v. State

The issue of recidivism is considered only in the sentencing phase of a trial and "[appellant] had no right…