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Thomas v. State

Evidence showed that the State notified the defendant of its continuing intention to use his prior convictions for murder, involuntary manslaughter, armed robbery and burglary in aggravation of punishment imposed on his burglary conviction and that he was aware of this intention.

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Three months after his first jury trial ended in a mistrial, Frank James Thomas was retried and convicted of one count of burglary. His amended motion for new trial was denied, and Thomas appeals, asserting as his sole enumeration of error that the State was required, before retrial, to file a new notice of intent to introduce his prior convictions in aggravation of punishment pursuant to OCGA § 17-16-4 a 5. But evidence was presented at the hearing on Thomas’ motion for new trial that the State gave clear notice of its intent to use Thomas’ prior convictions in the second trial, and that Thomas understood its intent to do so. The trial court was entitled to conclude from this testimony that Thomas had received adequate notice, and we therefore affirm.

Thomas was represented by the same counsel throughout the events giving rise to this appeal. The State filed its first notice of intent to use Thomas’ prior conviction for murder in aggravation of punishment on April 25, 2008. On May 5, 2008, the State filed a second notice of intent to use three additional convictions for involuntary manslaughter, armed robbery, and burglary. Thomas’ first trial in May 2008 ended in a mistrial. The State did not refile its earlier notices before Thomas’ retrial in August 2008. In the second trial, he was convicted of burglary, and the trial court sentenced him as a recidivist to 20 years without parole.

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