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Moore v. State

514 S.E.2d 73, 236 Ga. App. 889, 99 Fulton County D. Rep. 1407, 1999 Ga. App. LEXIS 359
CourtCourt of Appeals of Georgia
DecidedMarch 11, 1999
DocketA99A0371
StatusPublished
Cited by8 cases

This text of 514 S.E.2d 73 (Moore 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
Moore v. State, 514 S.E.2d 73, 236 Ga. App. 889, 99 Fulton County D. Rep. 1407, 1999 Ga. App. LEXIS 359 (Ga. Ct. App. 1999).

Opinion

Blackburn, Judge.

Basil Lavoid Moore pled guilty to armed robbery and was sentenced to ten years to serve and ten years probation. Moore appeals the trial court’s sentence, contending that it erred in automatically refusing to sentence the defendant under the First Offender Act, OCGA § 42-8-60 et seq. 1 As the facts in the record do not support Moore’s enumeration of error, we affirm.

*890 Decided March 11, 1999. Douglas C. Rogers, for appellant. J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

Moore contends that our decision in Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993) requires reversal. In Jones, the trial judge stated, in response to a request for first offender treatment, “I have never granted a first offender. I take the position that once you get to the Superior Court, this is a big folks’ court, and I don’t use the first offender treatment. Never have, never intend to.” (Punctuation omitted.) Id. We determined that, although the application of the first offender treatment is in the trial court’s discretion, the trial judge’s complete and uncompromising refusal to consider that option in any circumstance was a failure to exercise such discretion. Id. at 473. Therefore, we vacated the sentence and remanded the case with the direction that the trial court consider first offender treatment. Id.

In the present case, the record does not reflect a mechanical sentencing formula, compare Jones, nor does the record show a failure to consider first offender treatment. It merely reflects a decision not to sentence Moore under such discretionary sentencing provisions. We find no abuse of discretion.

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.
1

We note that the legislature amended OCGA § 17-10-6.1 effective March 27, 1998, to disallow the use of the first offender treatment for the conviction of a serious violent felony, including armed robbery. This amendment does not apply to Moore’s sentence as the armed robbery was committed on September 18, 1997, and he entered his guilty plea on March 6, 1998.

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Bluebook (online)
514 S.E.2d 73, 236 Ga. App. 889, 99 Fulton County D. Rep. 1407, 1999 Ga. App. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-gactapp-1999.