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Richards v. State

Court of Appeals of Georgia
Nov 24, 1981
287 S.E.2d 394 (Ga. Ct. App. 1981)




Armed robbery. Fulton Superior Court. Before Judge Alverson.

J. Douglas Willix, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, Robert A. Weathers, Assistant District Attorneys, for appellee.

Defendant appeals his resentencing to life imprisonment for conviction of the offense of armed robbery. Held:

In Richards v. State, 157 Ga. App. 601 (2) ( 278 S.E.2d 63), this court affirmed defendant's conviction but remanded for resentencing because the trial court had erroneously considered improperly admitted evidence of defendant's prior juvenile record in imposing a life sentence.

Defendant contends that since the same judge considered improperly admitted evidence of his prior record in aggravation in originally sentencing him to life, it would be error for that judge to resentence him to life absent that evidence, as the quantum of aggravating evidence was less and therefore the sentence should be less. It is also contended that because the prosecutor in the resentencing hearing argued in aggravation evidence properly admitted during the trial of defendant's participation in another armed robbery six hours after the armed robbery of which he was convicted, the trial court's consideration of such evidence was error under the holding of Minis v. State, 150 Ga. App. 671 (5), 675 ( 258 S.E.2d 308).

We find no error.

The sentence is within the limits authorized by law. Code Ann. § 26-1902 (Ga. L. 1968, pp. 1249, 1298 through 1981, p. 1266). A judge is authorized to fix a sentence within the limits prescribed by law. Code Ann. § 27-2503 (a) (Ga. L. 1974, pp. 352, 357). A defendant has a right to review of his sentence by a panel of three superior court judges. Code Ann. § 27-2511.1 (Ga. L. 1974 pp. 352, 358; 1977, pp. 1098, 1104); Lee v. State, 139 Ga. App. 65 (2) ( 227 S.E.2d 878).

Despite defendant's speculations, there is no indication in the transcript of the resentencing hearing, as there was in the first sentence hearing and in Minis v. State, 150 Ga. App. 671, supra, that the trial judge considered anything other than the circumstances of the offense itself.

"There is a presumption, in the absence of a strong showing to the contrary, that the trial judge separates the legal evidence from the `chaff' in reaching his decision [Cits.] and that the court as a public official performed faithfully and lawfully the duties devolving upon it by law and considered only legal evidence. [Cits.] In the face of a silent record, we will not presume error. We cannot say that the sentence imposed was not warranted under the facts nor will we say that it was unlawfully imposed based upon (speculation)." Watts v. State, 141 Ga. App. 127 (8), 133-4 ( 232 S.E.2d 590).

Judgment affirmed. McMurray, P. J., and Pope, J., concur.


Summaries of

Richards v. State

Court of Appeals of Georgia
Nov 24, 1981
287 S.E.2d 394 (Ga. Ct. App. 1981)
Case details for

Richards v. State

Case Details


Court:Court of Appeals of Georgia

Date published: Nov 24, 1981


287 S.E.2d 394 (Ga. Ct. App. 1981)
287 S.E.2d 394

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