Bolden v. State

552 S.E.2d 533, 250 Ga. App. 825, 2001 Fulton County D. Rep. 2378, 2001 Ga. App. LEXIS 827

• Court: Court of Appeals of Georgia
• Decided: July 16, 2001
• Docket: A01A0527
• Status: Published

Opinions

Mikell, Judge.

We granted Gordie Bolden’s application for discretionary appeal to consider whether the trial court properly considered her plea of nolo contendere to a subsequent offense when it vacated her first offender status and resentenced her. Because we find that a nolo contendere plea may be considered for the limited purpose of resentencing a defendant under the first offender provisions of OCGA § 42-8-60, we affirm.

After entering a guilty plea to one count of possession of marijuana and one count of sale of cocaine, Bolden was sentenced as a first offender. While on probation, Bolden entered a nolo contendere plea to a charge of theft by taking. The state filed a probation revocation petition based on Bolden’s commission of a subsequent offense. At the hearing, the state introduced a certified copy of Bolden’s nolo contendere plea to the theft by taking charge. The court vacated Bolden’s first offender status, entered an adjudication of guilt, and resentenced her.

Relying on OCGA § 17-7-95, Bolden argues that the trial court erred in considering her nolo contendere plea.¹ We reject Bolden’s argument, however, and find that her plea was admissible in the narrow context of resentencing her.

OCGA § 42-8-60 governs probation prior to adjudication of guilt and allows the court to grant first offender status to a defendant who has not been previously convicted of a felony. First offender status merely affords a defendant the opportunity to defer further proceedings and to be placed on probation. Such status may be revoked based on any violation of the conditions imposed on the defendant in connection with the first offender sentence.

In this case, when Bolden was sentenced as a first offender, her sentence provided that further proceedings were deferred, but that upon violation of her conditions of probation, the court could enter an adjudication of guilt and sentence her accordingly. Therefore, when Bolden came before the trial judge again, although the procedure might be referred to as a hearing on revocation of first offender status, it is more accurately characterized as a resumption of her deferred sentencing proceeding. Although the appealed order is contained on a pre-printed form entitled “Probation Revocation Order,” it does not provide that Bolden’s probation has been “revoked”; rather, the order provides: “First Offender Status & Sentence Vacated; Adjudication of Guilt Entered,” and further specifies the terms of her resentence.

Furthermore, OCGA § 17-10-2 (a), which specifically allows the consideration of nolo contendere pleas for sentencing purposes, applies to first offender resentencing.² Bolden was notified that the hearing would concern her charge of theft by taking, as required by the statute.³ Thus, in the narrow circumstances of this case, the trial court was entitled to consider Bolden’s nolo contendere plea in resentencing her under the first offender provisions of OCGA § 42-8-60. Accordingly, we affirm.

Judgment affirmed.

Pope, P. J., Johnson, P. J., Eldridge and Miller, JJ, concur. Blackburn, C. J., and Andrews, P. J., dissent.

1 OCGA § 17-7-95 (c) provides: “Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.”

2 See Gilbert v. State, 245 Ga. App. 544, 546 (2) (538 SE2d 104) (2000).

3 OCGA § 17-10-2 (a) provides that “only such evidence in aggravation [of punishment] as the state has made known to the defendant” shall be admissible.