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Kennedy v. State

The trial court was authorized to sentence the defendant pursuant to the general recidivist provisions of O.C.G.A. § 17-10-7 c, rather than the specific recidivist provisions of 16-7-1 b, because 16-7-1 b applies specifically to defendants having only prior burglary convictions and Kennedy had prior convictions for other felonies.

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Dana E. Kennedy entered into a negotiated guilty plea on two counts of burglary and was sentenced as a recidivist. On appeal, he argues that the trial court erred in sentencing him under the general recidivist provisions of OCGA § 17-10-7c1, as opposed to the specific recidivist provisions of OCGA § 16-7-1 b.2 We affirm. At the time that Kennedy pled guilty to the instant burglary charges, the state introduced certified copies of Kennedy’s four prior convictions. They included two earlier burglary convictions, a theft by taking conviction, and a forgery in the first degree conviction. The state had filed with the trial court notice of its intent both to prosecute Kennedy as a recidivist and to offer the prior convictions as evidence in aggravation of punishment.

In accordance with the plea agreement, the trial court then sentenced Kennedy to twenty years concurrently on each burglary count, ten years to serve in incarceration and the remaining ten years to be served on probation. The trial court further noted that the sentence was being given pursuant to OCGA § 17-10-7 c, rendering Kennedy ineligible for parole during his ten year incarcerated sentence.

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