Cook v. State

Nothing in the burglary statute limits the dual use of prior convictions in both the guilt-innocence phase and at sentencing.

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A jury convicted Marcus Cook of one count of burglary OCGA § 16-7-1 a. Cook, proceeding pro se, appeals from the trial court’s denial of his motion to vacate void sentence , contending that his recidivist sentence is void because the trial court erred in considering i a prior felony conviction that was admitted as similar transaction evidence and ii a separate felony conviction for which he received a probated sentence.1 Discerning no error, we affirm. This case presents a question of law, which we review de novo on appeal. See O’Neal v. State , 285 Ga. 361, 362 677 SE2d 90 2009.

Prior to trial, the State filed a notice of intent to present evidence of Cook’s prior felony convictions in aggravation of sentence pursuant to OCGA § § 17-10-2 and 17-10-7.2 The notice, which was served upon defense counsel, referred to the following crimes: 1 a 1993 burglary, 2 a 1995 burglary, 3 a 1996 burglary, 4 a 1998 interference with government property, and 5 a 1998 felony obstruction of an officer. Pursuant to the State’s notice of intent to present three prior burglary convictions as similar transaction evidence, the trial court admitted a 1994 burglary conviction for the purpose of showing Cook’s intent and bent of mind. During the sentencing hearing, for purposes of aggravation of punishment and for recidivist treatment, the State introduced, and the trial court admitted, without objection, Cook’s five prior felony convictions, including the burglary conviction that had been admitted during the guilt-innocence phase of the trial. The trial court expressly treated Cook as a recidivist, and sentenced him to twenty years, ten years to serve in incarceration and the remaining ten years to be served on probation, without eligibility for parole. OCGA § 17-10-7 a and c.

Cook v. State

Nothing in the burglary statute limits the dual use of prior convictions in both the guilt-innocence phase and at sentencing.

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