Turner v. State

Defense counsel was deficient for failing to object to the trial court's use of defendant's prior out-of-state conviction to fix the length of his sentence in violation of O.C.G.A. § 17-10-2 a.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

After a trial by jury, Turner was convicted on two counts of violating the Georgia Controlled Substances Act VGCSA for twice selling cocaine. He contends on appeal that improper evidence was presented at sentencing. 1. At the sentencing hearing, the prosecutor recommended a sentence of fifteen years, with four or five to serve, because it was Turner’s first drug conviction. The judge responded that he had information, apparently a probation report, which showed that Turner had been convicted for selling drugs in Cherokee County, Georgia and in Jacksonville, Florida, and he asked Turner to confirm the information. Turner denied being convicted in Cherokee County but admitted the conviction in Jacksonville. In response, the prosecutor stated that his recommendation was too light, and the judge agreed. The judge then sentenced Turner to twenty years with ten to serve. It is undisputed that the State had not notified Turner prior to trial that the Jacksonville conviction would be used at sentencing.

OCGA § 17-10-2 a allows the State to introduce evidence in aggravation of punishment “provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” Applying this code section, the Supreme Court has held that a previously undisclosed probation report showing prior convictions cannot be used in fixing the length of the sentence. Munsford v. State , 235 Ga. 38, 45 218 SE2d 792 1975 earlier codification of § 17-10-2 is Ga. Code § 27-2503 a. See also McDuffie v. Jones , 248 Ga. 544, 549 3 283 SE2d 601 1981, rev’d on other grounds, West v. Waters , 272 Ga. 591, 593 3 533 SE2d 88 2000. Pearce v. State , 256 Ga. App. 889 570 SE2d 74 2002, cited by the State, is not on point. It addressed “evidence other than prior convictions.” Id. at 890 1.

Turner v. State

Defense counsel was deficient for failing to object to the trial court's use of defendant's prior out-of-state conviction to fix the length of his sentence in violation of O.C.G.A. § 17-10-2 a.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report