Following a bench trial, Anthony Recardo Spinner was convicted of one count of felony family violence battery, OCGA § 16-5-23.1 f 2. Judgment was entered on the conviction, and Spinner appeals, enumerating as error the trial court’s consideration of a previous nolo contendere plea to the offense of battery. He contends that the felony conviction was not authorized, because the nolo contendere plea did not constitute a conviction for purposes of OCGA § 16-5-23.1 f 2. We do not agree, and we affirm. The State presented undisputed evidence that following a disagreement on March 27, 2002, Spinner and his wife became involved in a “scuffle,” during which he placed his hands around her neck and began to choke her. Spinner eventually released the victim, however, and she summoned the police. The parties stipulated, among other things, that in 1996, Spinner entered a pro se plea of nolo contendere to battery against the victim, his wife. After the State presented its evidence, Spinner moved for an involuntary dismissal on the ground that the previous plea did not constitute a conviction for purposes of adjudicating him guilty of felony family violence battery. The trial court denied the motion, concluded that the previous plea constituted a conviction, and entered its judgment of conviction against Spinner.
Under OCGA § 16-5-23.1 a, “a person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” If a battery as defined by this subsection is committed by one spouse upon the other, the offense constitutes “family violence battery.” OCGA § 16-5-23.1 f. Subsection f further provides: “1 Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor; and 2 Upon a second or subsequent conviction of family violence battery against the same or another victim, the defendant shall be guilty of a felony.” Spinner contends that his prior nolo contendere plea was not a conviction and therefore that he could not have been guilty of a felony in this case.
