Jenkins v. State, 510 S.E.2d 87 (Ga. Ct. App. 1998). · Go Syfert
Jenkins v. State, 510 S.E.2d 87 (Ga. Ct. App. 1998). Cases Citing This Book View Copy Cite
“prior arrests are not properly considered in imposing recidivist punishment”
58 citation events (44 in the last 25 years) across 2 distinct courts.
Strongest positive: Robert Anthony Smith v. State (gactapp, 2015-08-20) · Strongest negative: McINTOSH v. State (gactapp, 2007-08-17)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 23 distinct citers.
discussed Cited "but see" McINTOSH v. State (2×)
Ga. Ct. App. · 2007 · signal: but see · confidence high
But see Gilbert v. State, 245 Ga. App. 544, 545 (2) ( 538 SE2d 104 ) (2000) (OCGA§ 17-10-2 does not apply to sentencing following a guilty plea). 6 Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998). 7 Evans, supra at 334-335 (2).
discussed Cited as authority (quoted) Robert Anthony Smith v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence low
prior arrests are not properly considered in imposing recidivist punishment
discussed Cited as authority (rule) Daniel W. Taylor v. State
Ga. Ct. App. · 2014 · confidence medium
Obstruction of a police officer is “included in” the crime of aggravated assault on a police officer when the former is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the latter.32 31 (Punctuation omitted.) Daniels v. State, 296 Ga. App. 795, 798 (3) ( 676 SE2d 13 ) (2009), quoting Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998).
cited Cited as authority (rule) Taylor v. State
Ga. Ct. App. · 2014 · confidence medium
(Punctuation omitted.) Daniels v. State, 296 Ga. App. 795, 798 (3) ( 676 SE2d 13 ) (2009), quoting Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998).
discussed Cited as authority (rule) Jerrell Williams v. State
Ga. Ct. App. · 2014 · confidence medium
See Bostick v. Ricketts, 236 Ga. 304, 307 (2) ( 223 SE2d 686 ) (1976) (any consideration of prior misdemeanors during recidivist sentencing was harmless in light of defendant’s numerous prior felony convictions); Johnson v. State, 284 Ga. App. 724, 727 (3) ( 644 SE2d 544 ) (2007) (pretermitting whether court erred in considering prior first offender plea, proof of defendant’s other felony convictions was sufficient to authorize punishment under OCGA § 17-10-7 (c)); Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998) (at sentencing, any error in discussion of defendant�…
discussed Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2014 · confidence medium
See Bostick v. Ricketts, 236 Ga. 304, 307 (2) ( 223 SE2d 686 ) (1976) (any consideration of prior misdemeanors during recidivist sentencing was harmless in light of defendant’s numerous prior felony convictions); Johnson v. State, 284 Ga. App. 724, 727 (3) ( 644 SE2d 544 ) (2007) (pretermitting whether court erred in considering prior first offender plea, proof of defendant’s other felony convictions was sufficient to authorize punishment under OCGA § 17-10-7 (c)); Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998) (at sentencing, any error in discussion of defendant�…
cited Cited as authority (rule) Crowder v. State
Ga. Ct. App. · 2010 · confidence medium
See, e.g., OCGA § 17-10-2 (2005); Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998) (80 minutes notice sufficient).
discussed Cited as authority (rule) NOELLIEN v. State
Ga. Ct. App. · 2009 · confidence medium
“A presumption exists that a trial judge did not consider improper matters in imposing sentence.” Jones v. State, 265 Ga. App. 251, 254 (2) ( 593 SE2d 720 ) (2004), citing Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998).
discussed Cited as authority (rule) Daniels v. State
Ga. Ct. App. · 2009 · confidence medium
“This [c]ourt has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute.” Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998).
examined Cited as authority (rule) Kohlhaas v. State (3×) also: Cited "see"
Ga. Ct. App. · 2007 · confidence medium
(Citation and punctuation omitted.) Jenkins v. State, 235 Ga. App. 547, 547-548 (1) ( 510 SE2d 87 ) (1998).
examined Cited as authority (rule) Morse v. State (3×) also: Cited "see"
Ga. Ct. App. · 2005 · confidence medium
Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998).
discussed Cited as authority (rule) Ruff v. State
Ga. Ct. App. · 2004 · confidence medium
Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses. 2 State v. Dickerson, 273 Ga. 408, 411 (2) ( 542 SE2d 487 ) (2001). 3 Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998). 5 Wilburn v. State, 199 Ga. App. 667, 669 (3) ( 405 SE2d 889 )…
cited Cited as authority (rule) Jones v. State
Ga. Ct. App. · 2004 · confidence medium
Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998).
discussed Cited as authority (rule) Wood v. State
Ga. Ct. App. · 2003 · confidence medium
Smith, Assistant District Attorney, for appellee. 1 Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Ney v. State, 227 Ga. App. 496, 499 (4) ( 489 SE2d 509 ) (1997). 2 Johnson v. State, 222 Ga. App. 722, 728 (9) ( 475 SE2d 918 ) (1996). 3 Ney, supra. 4 Jacobson v. State, 201 Ga. App. 749, 753 (5) (d) ( 412 SE2d 859 ) (1991). 5 Roaderick v. State, 257 Ga. App. 73 ( 570 SE2d 382 ) (2002). 6 See generally Walker v. State, 197 Ga. App. 265, 266 ( 398 SE2d 217 ) (1990). 7 See generally Taylor v. State, 253 Ga. App. 468, 471 (2) ( 559 SE2d 499 ) (2002). 8 See generally West…
discussed Cited as authority (rule) Cabell v. State
Ga. Ct. App. · 2001 · confidence medium
Ruffin and Ellington, JJ., concur. 1 Ross v. State, 210 Ga. App. 455, 458 (4) ( 436 SE2d 496 ) (1993). 2 See Jones v. State, 185 Ga. App. 649, 650 (1) ( 366 SE2d 144 ) (1988). 3 Martin v. State, 207 Ga. App. 861, 862 ( 429 SE2d 332 ) (1993). 4 Young v. State, 245 Ga. App. 684, 686-687 (3) ( 538 SE2d 760 ) (2000). 5 Id. at 686 . 6 See Davis v. State, 246 Ga. App. 877, 879 (3) ( 542 SE2d 626 ) (2000); Jenkins v. State, 235 Ga. App. 547, 549 (3) (b) ( 510 SE2d 87 ) (1998). 7 See Devane v. State, 183 Ga. App. 60, 63 (2) (a) ( 357 SE2d 819 ) (1987) (physical precedent only); Stewart v. State, 180 G…
cited Cited as authority (rule) Hayes v. State
Ga. Ct. App. · 2001 · confidence medium
Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998). 5.
discussed Cited as authority (rule) Davis v. State
Ga. Ct. App. · 2000 · confidence medium
“This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute.” Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998).
discussed Cited as authority (rule) Davis v. State (2×)
Ga. Ct. App. · 2000 · confidence medium
“This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute.” Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998) (notice given 80 minutes before start of trial sufficient).
discussed Cited as authority (rule) Robbins v. State
Ga. Ct. App. · 2000 · confidence medium
Mitcham, Jr., Assistant District Attorney, for appellee. 1 Wilhelm v. State, 237 Ga. App. 682 ( 516 SE2d 545 ) (1999); Cantrell v. State, 230 Ga. App. 693, 694-695 (1) ( 498 SE2d 90 ) (1998). 2 Wilhelm, supra. 3 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Wilhelm, supra. 4 Id. 5 The actual date Robbins left home is unclear, but he testified unequivocally that he lived at home until 1994. 6 Robbins, who testified at trial, was unable to recall the year that he married. 7 The trial court directed a verdict of acquittal on one count of molestation. 8 Havron v. State, 234 Ga. App. 413, 414 (1)…
discussed Cited as authority (rule) Evans v. State
Ga. Ct. App. · 1999 · confidence medium
McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee. 1 Maxwell v. State, 233 Ga. App. 419 (1) ( 503 SE2d 668 ) (1998). 2 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lawson v. State, 214 Ga. App. 464, 465 (1) ( 448 SE2d 14 ) (1994); Johnson v. State, 190 Ga. App. 697, 698 (1), (2) ( 380 SE2d 81 ) (1989). 3 OCGA §§ 16-7-1 (a); 16-8-41 (a). 4 See OCGA §§ 16-1-6; 16-1-7; Golden v. State, 233 Ga. App. 703, 704-705 (2) (a), (b) ( 505 SE2d 242 ) (1998). 5 See Boyd v. State, 168 Ga. App. 246, 251-252 (8) ( 308 SE2d 626 ) (1983). 6…
discussed Cited "see" Pierre K. Riley v. State (2×)
Ga. Ct. App. · 2020 · signal: see · confidence high
See Jenkins v. State, 235 Ga. App. 547, 547-548 (1) ( 510 SE2d 87 ) (1998); see also Walker, 281 Ga. at 524 (5); Jones, 159 Ga. App. at 704-705 (2).
discussed Cited "see" McGee v. State (2×)
Ga. Ct. App. · 2002 · signal: see · confidence high
See Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) ( 510 SE2d 87 ) (1998); Godfrey, supra; Scott v. State, 216 Ga. App. 692, 695 (4) ( 455 SE2d 609 ) (1995) (physical precedent only); cf. Manker v. State, 223 Ga. App. 3, 6 (5) ( 476 SE2d 785 ) (1996) (sentence reversed where transcript specifically showed that trial judge relied on inadmissible evidence in sentencing defendant as a recidivist under OCGA § 17-10-7), questioned on other grounds, Gillman v. State, 239 Ga. App. 880, 882 (2) (a) ( 522 SE2d 284 ) (1999).
examined Cited "see" Dickerson v. State (4×)
Ga. Ct. App. · 2000 · signal: see · confidence high
See Jenkins v. State, 235 Ga. App. 547, 549 (3) (a) ( 510 SE2d 87 ) (1998) (failure to move for continuance precludes defendant from asserting his counsel was not afforded ample opportunity to investigate); Watts v. State, 265 Ga. 888 (2) ( 463 SE2d 696 ) (1995) (failure to move for a continuance precluded consideration of error).
Jenkins
v.
the State
A98A1344.
Court of Appeals of Georgia.
Dec 2, 1998.
510 S.E.2d 87
Edenfield, Cox, Bruce & Classens, Michael J. Classens, for appellant., R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.
Pope, Beasley, Ruffin.
Cited by 26 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 77%
Citer courts: Court of Appeals of Georgia (1)
Pope, Presiding Judge.

On the night of December 16,1996, the owner of a service station called police after he observed appellant James Edward Jenkins enter the station building through a broken window after business hours. When officers arrived minutes later, they found Jenkins sitting on the floor behind the counter and a bag of copper piping near the counter out of its normal position in the back room. Jenkins told the officers that he was in the closed service station because he slept there every night. Jenkins was arrested and indicted on one count of burglary. At trial, the court charged the jury on the elements of both burglary and the lesser included offense of criminal trespass. Jenkins appeals from the trial court’s denial of his motion for new trial following his conviction for burglary. We affirm.

1. Jenkins first argues that the trial court erred in allowing the prosecutor to make improper remarks during closing argument.

He asserts that the prosecutor improperly referred to punishment in violation of OCGA § 17-8-76 when he stated that if the jury convicted Jenkins of the lesser included offense of criminal trespass “that that would be letting this Defendant off the hook. . . .” He also contends that the prosecutor improperly referred to issues of Jenkins’ credibility in violation of OCGA § 17-8-75 when he argued, “There was some evidence that this Defendant said well I was sleeping. I sleep here all the time, but that’s just not believable under these circumstances.” Jenkins’ counsel made no objection to these remarks at trial.

“The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. When no timely objection is interposed, the test for reversible error is not simply whether or not the[*548] argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” (Citations and punctuation omitted.) Richards v. State, 232 Ga. App. 584, 588 (4) (502 SE2d 519) (1998).

Even if the prosecutor’s remarks could be interpreted as improper, we find it highly improbable in light of the evidence that these remarks changed the result of the trial. Therefore, any error in the prosecutor’s argument was harmless. See Bishop v. State, 268 Ga. 286, 294 (14) (486 SE2d 887) (1997); Cherry v. State, 230 Ga. App. 443, 447 (5) (496 SE2d 764) (1998).

2. Jenkins next asserts that he was denied effective assistance of counsel because his trial attorney failed to object to the prosecutor’s arguments and further because he failed to move for a directed verdict at the close of the state’s case.

“To succeed on an ineffective assistance of counsel claim, [Jenkins] must show that trial counsel’s performance was deficient and that it prejudiced [him] so as to deprive [him] of a fair trial. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992). “Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations, punctuation and emphasis omitted.) Brooks v. State, 232 Ga. App. 115, 119 (15) (501 SE2d 286) (1998).

Here, there is no evidence that defendant’s trial counsel’s actions were deficient. Moreover, as we have held that any improper argument from the prosecutor was harmless error and as Jenkins has failed to show that there is a reasonable probability that but for his counsel’s trial tactics the results of the trial would have been different, we conclude that Jenkins was not denied effective assistance of counsel.

3. Jenkins further argues that his case should be remanded for re-sentencing due to defects in the notice and procedure for the presentence hearing required under OCGA § 17-10-2.

(a) Jenkins argues that he failed to receive timely notice that the state intended to use his prior convictions to seek recidivist punishment. OCGA § 17-10-2 provides that in determining punishment, the[*549] trial judge shall hear in aggravation only the evidence that “[t]he state has made known to the defendant prior to the defendant’s trial.” The state filed notice of its intent to seek recidivist punishment at 7:40 a.m. April 7, 1997, approximately 80 minutes before the trial was scheduled to begin. While jury selection had occurred the prior day, the jury was not sworn in until the morning of April 7, at the start of trial. This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute. See Godfrey v. State, 227 Ga. App. 576, 577 (1) (489 SE2d 364) (1997); Payne v. State, 219 Ga. App. 318, 319 (4) (464 SE2d 884) (1995). Jenkins, therefore, received timely notice of the intention to seek recidivist punishment.

Jenkins argues, however, that the notice did not allow his trial counsel sufficient time to prepare for the presentence hearing. “The failure to move for a continuance precludes appellant from asserting that his counsel was not afforded an ample opportunity to investigate the admissibility of the prior conviction as evidence in aggravation of the sentence! ] imposed in this case.” Day v. State, 188 Ga. App. 648, 650-651 (8) (374 SE2d 87) (1988). Godfrey v. State, 227 Ga. App. at 577 (1).

(b) Jenkins also contends that the trial court failed to follow the requirements of OCGA § 17-10-2 (a) for a presentence hearing and thus he argues no hearing occurred. OCGA § 17-10-2 (a) provides that “upon the return of a verdict of ‘guilty’ by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed.” The statute further provides that the district attorney shall open the argument and that defendant or his counsel shall conclude the argument. OCGA § 17-10-2 (a).

After the verdict, the judge conducted a bench conference on sentencing without dismissing the jury. During the conference, the prosecution presented his argument and evidence first, followed by the defense counsel’s argument; the prosecutor then replied with rebuttal argument to which the defendant answered with surrebuttal. The argument eventually evolved into a back-and-forth discussion with the trial court regarding the requirements of OCGA § 17-10-2. Defense counsel raised no objection to this procedure.

While the failure to hold a presentence hearing cannot be waived by a failure to object, Hayes v. State, 211 Ga. App. 801, 804 (3) (440 SE2d 539) (1994), we find that the trial court did hold a hearing in accordance with OCGA § 17-10-2 (a). This Court has held that the language instructing the court to dismiss the jury “is directory only and is for the sole purpose of permitting the jury to disburse and not require them to remain in a jury box during the progress of the presentence hearing. Any failure on the part of the trial judge to dis[*550] miss the jury at this stage of the proceeding, if an error, does not in any way affect the indictment, trial and conviction of the defendant, and if an error, is one of which he has no right to complain.” Whitley v. State, 137 Ga. App. 245, 246 (2) (223 SE2d 279) (1976). See Thomas v. State, 180 Ga. App. 575, 577 (349 SE2d 807) (1986) (Beasley, J., concurring specially). Thus, this procedure which is intended for the jury’s convenience provides no basis for Jenkins’ objection. In this case, moreover, there is no evidence that the jury was privy to the hearing, which was conducted at the bench. Therefore, any error in the trial court’s failure to dismiss the jury was harmless.

Additionally, the trial court followed the order of argument outlined in the statute allowing the state to argue first, followed by defense counsel. The fact that discussion between the counsel and the trial court continued after these initial presentations is not, as Jenkins argues, an indication that no hearing occurred, but rather demonstrates that the parties had the opportunity to address the issues fully. And as trial counsel made no objection to the procedure followed in the hearing, any error is waived. See generally Hatcher v. State, 224 Ga. App. 747, 750 (2) (a) (482 SE2d 443) (1997).

(c) Jenkins also asserts that the trial court erred in imposing the recidivist punishment because it improperly considered evidence of Jenkins’ prior arrests. The state introduced certified copies of one prior felony conviction and one prior misdemeanor conviction [1] and informed the court that Jenkins had at least four prior arrests. Jenkins is correct that prior arrests are not properly considered in imposing recidivist punishment. Sinkfield v. State, 262 Ga. 239, 240 (2) (416 SE2d 288) (1992). A presumption exists, however, that a trial judge did not consider improper matters in imposing sentence. Watkins v. State, 191 Ga. App. 87, 91 (8) (381 SE2d 45) (1989). A review of the record in this case demonstrates that Jenkins’ trial counsel successfully argued that his prior arrests were not to be considered in imposing recidivist punishment and that the trial court looked to Jenkins’ prior felony conviction in imposing the sentence in this case. Jenkins’ prior burglary conviction alone was sufficient under OCGA § 17-10-7 (a) to support the 20-year sentence imposed by the trial court. See Godfrey v. State, 227 Ga. App. at 577 (2). Accordingly, we find that any error in the discussion of the prior arrests was harmless.

Judgment affirmed.

Beasley and Ruffin, JJ, concur. [*551] Decided December 2, 1998. Edenfield, Cox, Bruce & Classens, Michael J. Classens, for appellant. R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.
1

The state’s notice under OCGA § 17-10-2 (a) did not list the misdemeanor conviction as evidence it intended to present at trial. However, a certified copy of that conviction was filed with the notice, and Jenkins’ counsel made no objection to its introduction at trial nor does Jenkins raise the issue on appeal. Thus, any issue in this regard is waived. See Hatcher v. State, 224 Ga. App. at 750.