McCoy v. State

437 S.E.2d 366, 210 Ga. App. 672, 93 Fulton County D. Rep. 3913, 1993 Ga. App. LEXIS 1308

• Court: Court of Appeals of Georgia
• Decided: October 27, 1993
• Docket: A93A2152
• Status: Published

Opinion

Andrews, Judge.

McCoy was found guilty by a jury on all six counts of an indictment charging him with six separate offenses of selling cocaine in violation of OCGA § 16-13-30 (b). Prior to trial, the State gave the defendant notice that it would use the defendant’s prior conviction for possession with intent to distribute cocaine in aggravation of punishment as a basis for imposition of life imprisonment under the recidivist provision of OCGA § 16-13-30 (d) applicable to conviction of a second or subsequent offense. Based on the defendant’s prior conviction, the trial court sentenced McCoy to life imprisonment on Count 1; a consecutive life term of imprisonment on Count 6, and on Counts 2, 3, 4 and 5, life terms concurrent with each other, and concurrent with the two consecutive life terms imposed under Counts 1 and 6.

In his sole enumeration of error, McCoy claims the separate life sentences imposed as recidivist punishment for convictions under each count of the indictment were void. He argues that the trial court was required to treat the convictions on the six counts in the indictment as only one conviction for which he could be sentenced for one life sentence. In support of this position McCoy cites a portion of the recidivist statute, OCGA § 17-10-7 (c), which states: “For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”

Decided October 27, 1993. Straughan & Straughan, Mark W. Straughan, for appellant. James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.

The provisions of subsection (c) of OCGA § 17-10-7 place limitations on the use of prior convictions used as a basis for imposing enhanced recidivist punishment. See Philmore v. State, 263 Ga. 67, 70 (428 SE2d 329) (1993); State v. Freeman, 198 Ga. App. 553, 555 (402 SE2d 529) (1991); Darty v. State, 188 Ga. App. 447 (373 SE2d 389) (1988). The life sentences in this case were imposed for convictions on each count of the indictment pursuant to the mandatory life sentence recidivist provision of OCGA § 16-13-30 (d) based on the defendant’s one prior conviction. The trial court properly imposed a mandatory life sentence for each offense. Jones v. State, 202 Ga. App. 162 (413 SE2d 784) (1991); State v. Sears, 202 Ga. App. 352, 354 (414 SE2d 494) (1991); OCGA § 17-10-10.

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.