In November 1994, Charles Pritchett, Jr. and codefendant James Taylor were convicted by a jury of the offense of possession of cocaine and were sentenced to “twenty five 25 years without parole as fourth felony under recidivist statute.” In separate opinions, only one of which was published, both convictions were affirmed by this court. See Taylor v. State , 230 Ga. App. 749 498 SE2d 113 1998; Pritchett v. State , 223 Ga. App. XXIX 1996. In June 2003, Pritchett filed a “Motion to Vacate Void Sentence,” arguing that the trial court failed to exercise its discretion to probate any part of his sentence and that the court improperly enhanced the sentence to 25 years after it first pronounced a 15-year sentence. The trial court denied the motion, and Pritchett brought this pro se appeal. Contrary to any contention by Pritchett that the State failed to give notice of its intent to use previous convictions in aggravation of punishment, the transcript of the pre-sentence hearing shows that the State “previously notified both defendants that it would seek punishment against them as recidivists.” Although Taylor raised some argument as to the adequacy of the notice, Pritchett raised no such objection. It appears to be undisputed that the State presented evidence that Pritchett had three prior felony convictions for possession of cocaine. The prosecutor informed the court that it was “mandatory that the Court sentence him to fifteen years imprisonment without benefit of parole.” The Court recited that it would impose on both defendants “a sentence of fifteen years under the . . . Recidivist section of the Georgia Code.” Before the hearing concluded but before the trial court signed the judgment of conviction and sentence, however, the prosecutor stated that “they might need to be sentenced under subsection c. There’s enhanced punishment for second offense distribution and second offense possession.” The court then recited, “Well, to give effect to the law as the legislature has written it, make that twenty-five years.” The judgment of conviction and sentence reflects that the word “fifteen” was marked through and replaced with the word “twenty-five.”
1. Pritchett argues that the trial court failed to exercise its discretion to probate part of his sentence. We do not agree.