Connelly v. State

Court of Appeals of Georgia

Connelly v. State

196 S.E.2d 411, 128 Ga. App. 265, 1973 Ga. App. LEXIS 1458

CourtCourt of Appeals of Georgia

DecidedFebruary 21, 1973

Docket47941

StatusPublished

Cited by1 cases

This text of 196 S.E.2d 411 (Connelly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Connelly v. State, 196 S.E.2d 411, 128 Ga. App. 265, 1973 Ga. App. LEXIS 1458 (Ga. Ct. App. 1973).

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Opinion

Bell, Chief Judge.

1. Defendant pleaded nolo contendere to the offense of robbery by the use of force on October 26, 1972, and was sentenced to four years imprisonment. On appeal he contends that the trial court erred in considering as the part of the pre-sentencing report a plea of nolo contendere he entered to a charge of burglary in the same trial court in 1969. Code Ann. § 27-1410 provides in part: "Such 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 . . .” It is unnecessary for us to decide whether this provision which became law in 1946 (Ga. L. 1946, p. 142) would apply to this situation in view of the Act approved March 27, 1970. It provides in part that where the jury returns a verdict of guilty the court [266]*266shall then conduct a pre-sentence hearing at which the jury shall hear evidence in extenuation, mitigation and aggravation, "including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant.” Ga. L. 1970, pp. 949, 950 (Code Ann. § 27-2534). Obviously, if a jury in a felony case would be authorized to consider a prior plea of nolo contendere in determining the sentence, all the more a trial judge can do so. The contention that the 1970 statute cannot be applied to permit consideration of the plea entered in 1969, has no merit. The defendant entered the second plea after the effective date of the 1970 Act which authorizes the trial court to consider his prior plea of nolo contendere in adjudging an appropriate sentence.

Argued February 6, 1973 — Decided February 21, 1973. Herndon & Cooper, Frederick E. Cooper, for appellant.

2. Where a sentence imposed is within the limits fixed by law, it is not subject to review as being excessive. Harper v. State, 14 Ga. App. 603 (81 SE 817).

Judgment affirmed.

Deen and Quillian, JJ., concur.

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Bell, Chief Judge.

1. Defendant pleaded nolo contendere to the offense of robbery by the use of force on October 26, 1972, and was sentenced to four years imprisonment. On appeal he contends that the trial court erred in considering as the part of the pre-sentencing report a plea of nolo contendere he entered to a charge of burglary in the same trial court in 1969. Code Ann. § 27-1410 provides in part: "Such 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 . . .” It is unnecessary for us to decide whether this provision which became law in 1946 (Ga. L. 1946, p. 142) would apply to this situation in view of the Act approved March 27, 1970. It provides in part that where the jury returns a verdict of guilty the court [266]*266shall then conduct a pre-sentence hearing at which the jury shall hear evidence in extenuation, mitigation and aggravation, "including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant.” Ga. L. 1970, pp. 949, 950 (Code Ann. § 27-2534). Obviously, if a jury in a felony case would be authorized to consider a prior plea of nolo contendere in determining the sentence, all the more a trial judge can do so. The contention that the 1970 statute cannot be applied to permit consideration of the plea entered in 1969, has no merit. The defendant entered the second plea after the effective date of the 1970 Act which authorizes the trial court to consider his prior plea of nolo contendere in adjudging an appropriate sentence.

Argued February 6, 1973 — Decided February 21, 1973. Herndon & Cooper, Frederick E. Cooper, for appellant.

2. Where a sentence imposed is within the limits fixed by law, it is not subject to review as being excessive. Harper v. State, 14 Ga. App. 603 (81 SE 817).

Judgment affirmed.

Deen and Quillian, JJ., concur.

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196 S.E.2d 411, 128 Ga. App. 265, 1973 Ga. App. LEXIS 1458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connelly-v-state-gactapp-1973.

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