presentence hearing in Georgia

1997Munsford v. State, 235 Ga. 38, 45 ( 218 SE2d 792 ) (1975) (“The information in these reports cannot be regarded as ‘evidence’ either in aggravation or mitigation as such reports are not a part of the evidence introduced at the presentence hearing.”).

1997Munsford v. State, 235 Ga. 38, 45 ( 218 SE2d 792 ) (1975) (“The information in these reports cannot be regarded as ‘evidence’ either in aggravation or mitigation as such reports are not a part of the evidence introduced at the presentence hearing.”).

2026Compare Marshall v. State, 309 Ga. 698 , 702–03 (2020) (holding that the defendant waived his alleged sentencing error where the sentence was not void and he “did not raise this claim in the trial court, either at the presentence hearing or in his motion for new trial, and his trial counsel 9 See also Wilson, 315 Ga. at 740–41 (trial court did not rely on “improper considerations” during sentencing by commenting that defendant “fail[ed] to accept and recognize his responsibility”).

2026Compare Marshall v. State, 309 Ga. 698 , 702–03 (2020) (holding that the defendant waived his alleged sentencing error where the sentence was not void and he “did not raise this claim in the trial court, either at the presentence hearing or in his motion for new trial, and his trial counsel 9 See also Wilson, 315 Ga. at 740–41 (trial court did not rely on “improper considerations” during sentencing by commenting that defendant “fail[ed] to accept and recognize his responsibility”).

2024First, by its terms, OCGA § 17-10-2 (a) (1) does not even apply to Lovell, because the statute requires a presentence hearing only after a verdict “by the jury in any felony case.”6 Thus, OCGA § 17-10-2 (a) (1) “does not reach sentencing following guilty pleas.”7 Even if the statute did apply, it only requires “a presentence hearing.”8 “OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.”9 Nor has Lovell identified a due process right requiring the trial court to consider additional mitigatio

2024First, by its terms, OCGA § 17-10-2 (a) (1) does not even apply to Lovell, because the statute requires a presentence hearing only after a verdict “by the jury in any felony case.”6 Thus, OCGA § 17-10-2 (a) (1) “does not reach sentencing following guilty pleas.”7 Even if the statute did apply, it only requires “a presentence hearing.”8 “OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.”9 Nor has Lovell identified a due process right requiring the trial court to consider additional mitigatio

2024Our Supreme Court considered a similar situation in Langley when it reversed this Court’s holding that trial courts lack the discretion to probate any portion of a sentence imposed for possession of a firearm by a convicted felon. 313 Ga. at 143 (2). 2 OCGA § 17-10-1 (a) (1) (A) provides: Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of m

2022OCGA § 17-10-1 (a) (1) (A), the Code section that grants the power and authority to a judge, in fixing determinate criminal sentences generally, to suspend or probate all or part of a sentence, expressly excludes cases in which imprisonment for life, with or without the possibility of parole, may be imposed.1 See Langley v. State, 313 Ga. 141, 144-147 (2) ( 868 SE2d 759 ) (2022) (discussing 1 OCGA § 17-10-1 (a) (1) (A) provides: Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemea

2017See Edwards v. State, 219 Ga. App. 239, 240 (1) ( 464 SE2d 851 ) (1995) (the trial court’s failure to hold a presentence hearing constituted harmless error because the court imposed the statutory minimum sentence).

2017See Edwards v. State, 219 Ga. App. 239, 240 (1) ( 464 SE2d 851 ) (1995) (the trial court’s failure to hold a presentence hearing constituted harmless error because the court imposed the statutory minimum sentence).

1998While 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).

1998While 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).

1997Compare Jefferson v. State, 205 Ga. App. 687, 688 (2) ( 423 SE2d 425 ) (1992) (the failure to provide a presentence hearing for an adult, as mandated by OCGA § 17-10-2, is neither harmless nor waived by failure to object).

1997Compare Jefferson v. State, 205 Ga. App. 687, 688 (2) ( 423 SE2d 425 ) (1992) (the failure to provide a presentence hearing for an adult, as mandated by OCGA § 17-10-2, is neither harmless nor waived by failure to object).

2018We reasoned that the purpose of both the presentence hearing statute and the recidivism statute "is to see that prior convictions are presented at sentencing so that the proper punishment may be imposed." Id. at 734 (4) (b), 292 S.E.2d 102 (citations omitted).

2018We reasoned that the purpose of both the presentence hearing statute and the recidivism statute “is to see that prior convictions are presented at sentencing so that the proper punishment may be imposed.” Id. at 734 (4) (b) (citations omitted).

1979In Eberheart v. State, 232 Ga. 247 ( 206 SE2d 12 ) (1974), the Supreme Court discussed the scope of the presentence hearing under the former law governing such hearings.

1979In Eberheart v. State, 232 Ga. 247 ( 206 SE2d 12 ) (1974), the Supreme Court discussed the scope of the presentence hearing under the former law governing such hearings.

2025See Small v. State, 285 Ga. 5 Appellant does not differentiate his procedural due process rights under the federal constitution from his procedural due process rights under the state constitution or argue that one provides him greater protections. 26 App. 445 , 446 ( 646 SE2d 292 ) (2007) (holding that the defendant’s presence for sentencing was sufficient to satisfy the demands of due process when he and his counsel were present for the entire sentencing hearing and had the opportunity to present evidence and to object but did neither). (c) For his final sentencing-related claim, Appellant co

2025See Small v. State, 285 Ga. 5 Appellant does not differentiate his procedural due process rights under the federal constitution from his procedural due process rights under the state constitution or argue that one provides him greater protections. 26 App. 445 , 446 ( 646 SE2d 292 ) (2007) (holding that the defendant’s presence for sentencing was sufficient to satisfy the demands of due process when he and his counsel were present for the entire sentencing hearing and had the opportunity to present evidence and to object but did neither). (c) For his final sentencing-related claim, Appellant co

2024First, by its terms, OCGA § 17-10-2 (a) (1) does not even apply to Lovell, because the statute requires a presentence hearing only after a verdict “by the jury in any felony case.”6 Thus, OCGA § 17-10-2 (a) (1) “does not reach sentencing following guilty pleas.”7 Even if the statute did apply, it only requires “a presentence hearing.”8 “OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.”9 Nor has Lovell identified a due process right requiring the trial court to consider additional mitigatio

2024First, by its terms, OCGA § 17-10-2 (a) (1) does not even apply to Lovell, because the statute requires a presentence hearing only after a verdict “by the jury in any felony case.”6 Thus, OCGA § 17-10-2 (a) (1) “does not reach sentencing following guilty pleas.”7 Even if the statute did apply, it only requires “a presentence hearing.”8 “OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.”9 Nor has Lovell identified a due process right requiring the trial court to consider additional mitigatio

2024First, by its terms, OCGA § 17-10-2 (a) (1) does not even apply to Lovell, because the statute requires a presentence hearing only after a verdict “by the jury in any felony case.”6 Thus, OCGA § 17-10-2 (a) (1) “does not reach sentencing following guilty pleas.”7 Even if the statute did apply, it only requires “a presentence hearing.”8 “OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.”9 Nor has Lovell identified a due process right requiring the trial court to consider additional mitigatio

2024First, by its terms, OCGA § 17-10-2 (a) (1) does not even apply to Lovell, because the statute requires a presentence hearing only after a verdict “by the jury in any felony case.”6 Thus, OCGA § 17-10-2 (a) (1) “does not reach sentencing following guilty pleas.”7 Even if the statute did apply, it only requires “a presentence hearing.”8 “OCGA § 17-10-2 provides that a trial judge must conduct a pre-sentence hearing to determine punishment, and the record shows that such a hearing was held.”9 Nor has Lovell identified a due process right requiring the trial court to consider additional mitigatio

2020Nevertheless, relying on von Thomas v. State, 293 Ga. 569, 573-74 (2) ( 748 SE2d 446 ) (2013), Marshall now asserts that he has not waived this claim because it “challenges ‘the effect or use of the prior convictions’” and is therefore like a challenge to the sufficiency of the evidence supporting his recidivist sentences, which he claims can be asserted for the first time on appeal.5 In considering Marshall’s recidivist sentences, we start with the principle that as a general matter, “[e]rrors not raised in the trial 5 Marshall’s analogy to a claim of insufficiency of the evidence is misplace

2020Nevertheless, relying on von Thomas v. State, 293 Ga. 569, 573-74 (2) ( 748 SE2d 446 ) (2013), Marshall now asserts that he has not waived this claim because it “challenges ‘the effect or use of the prior convictions’” and is therefore like a challenge to the sufficiency of the evidence supporting his recidivist sentences, which he claims can be asserted for the first time on appeal.5 In considering Marshall’s recidivist sentences, we start with the principle that as a general matter, “[e]rrors not raised in the trial 5 Marshall’s analogy to a claim of insufficiency of the evidence is misplace

2020Nevertheless, relying on von Thomas v. State, 293 Ga. 569, 573-74 (2) ( 748 SE2d 446 ) (2013), Marshall now asserts that he has not waived this claim because it “challenges ‘the effect or use of the prior convictions’” and is therefore like a challenge to the sufficiency of the evidence supporting his recidivist sentences, which he claims can be asserted for the first time on appeal.5 In considering Marshall’s recidivist sentences, we start with the principle that as a general matter, “[e]rrors not raised in the trial 5 Marshall’s analogy to a claim of insufficiency of the evidence is misplace

2020Nevertheless, relying on von Thomas v. State, 293 Ga. 569, 573-74 (2) ( 748 SE2d 446 ) (2013), Marshall now asserts that he has not waived this claim because it “challenges ‘the effect or use of the prior convictions’” and is therefore like a challenge to the sufficiency of the evidence supporting his recidivist sentences, which he claims can be asserted for the first time on appeal.5 In considering Marshall’s recidivist sentences, we start with the principle that as a general matter, “[e]rrors not raised in the trial 5 Marshall’s analogy to a claim of insufficiency of the evidence is misplace

2020There’s no argument for the defense to make in regards to sentencing[.]” The trial court thereafter expressly sentenced Marshall as a recidivist under OCGA § 17-10-7 (a) and (c).4 On appeal, Marshall contends that the trial court erred in imposing recidivist sentencing because two of the four Alabama 4 Subsection (a) of the statute requires a sentence for “the longest period of time prescribed for the subsequent offense.” Blackwell v. State, 302 Ga. 820, 830-31 (4) ( 809 SE2d 727 ) (2018) (punctuation omitted). “[S]ubsection (c) requires the recidivist to serve the maximum time provided in the

2020There’s no argument for the defense to make in regards to sentencing[.]” The trial court thereafter expressly sentenced Marshall as a recidivist under OCGA § 17-10-7 (a) and (c).4 On appeal, Marshall contends that the trial court erred in imposing recidivist sentencing because two of the four Alabama 4 Subsection (a) of the statute requires a sentence for “the longest period of time prescribed for the subsequent offense.” Blackwell v. State, 302 Ga. 820, 830-31 (4) ( 809 SE2d 727 ) (2018) (punctuation omitted). “[S]ubsection (c) requires the recidivist to serve the maximum time provided in the

2020“The rule has been laid down by the Supreme Court, and applied by this court, that sentences for criminal offenses should be certain, definite, and free from ambiguity; and, where the contrary is the case, the benefit of the doubt should be given to the accused.” (Citation and punctuation omitted.) Dilas v. State, 159 Ga. App. 39, 40 (1) ( 282 SE2d 690 ) (1981).

2020See Jones, 278 Ga. at 670-671 (“Assertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post-§ 17-10-1 (f) sentence modification.”); Ward v. State, 299 Ga. App. 63, 64 ( 682 SE2d 128 ).

2020See Jones, 278 Ga. at 670-671 (“Assertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post-§ 17-10-1 (f) sentence modification.”); Ward v. State, 299 Ga. App. 63, 64 ( 682 SE2d 128 ).

2020See Jones, 278 Ga. at 670-671 (“Assertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post-§ 17-10-1 (f) sentence modification.”); Ward v. State, 299 Ga. App. 63, 64 ( 682 SE2d 128 ).

2019See Foster, 283 Ga. at 49-50 .

2015Under OCGA § 17-10-2, during a presentence hearing, the judge shall “hear argument by the accused or the accused’s counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed.”43 Here, because trial counsel spoke on his client’s behalf (and Pepe-Frazier even made a brief statement), the statute was satisfied and he was not denied his right to allocution.44 Accordingly, any objection by Pepe-Frazier’s trial counsel would have lacked merit and, thus, counsel was not ineffective.45 Pepe-Frazier also seems to argue that his defense counsel rendered ineffective

2015Under OCGA § 17-10-2, during a presentence hearing, the judge shall “hear argument by the accused or the accused’s counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed.”43 Here, because trial counsel spoke on his client’s behalf (and Pepe-Frazier even made a brief statement), the statute was satisfied and he was not denied his right to allocution.44 Accordingly, any objection by Pepe-Frazier’s trial counsel would have lacked merit and, thus, counsel was not ineffective.45 Pepe-Frazier also seems to argue that his defense counsel rendered ineffective

2015Under OCGA § 17-10-2, during a presentence hearing, the judge shall “hear argument by the accused or the accused’s counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed.”43 Here, because trial counsel spoke on his client’s behalf (and Pepe-Frazier even made a brief statement), the statute was satisfied and he was not denied his right to allocution.44 Accordingly, any objection by Pepe-Frazier’s trial counsel would have lacked merit and, thus, counsel was not ineffective.45 Pepe-Frazier also seems to argue that his defense counsel rendered ineffective

2012However, “[w]hether a continuance should be granted for lack of preparation lies within the discretion of the trial court. [Cits.]” Jackson v. Hopper, 232 Ga. 419, 420 (1) ( 207 SE2d 58 ) (1974).

2012However, “[w]hether a continuance should be granted for lack of preparation lies within the discretion of the trial court. [Cits.]” Jackson v. Hopper, 232 Ga. 419, 420 (1) ( 207 SE2d 58 ) (1974).

2011See Hollie v. State, 287 Ga. 389, 390-391 ( 696 SE2d 642 ) (2010). 6 The Final Disposition imposed certain fines and charges as special conditions of probation and required Appellant to have no contact whatsoever with the victim, to successfully complete sex offender evaluation and treatment at his own expense, and to register as a sex offender as mandated by statute.

2011See Hollie v. State, 287 Ga. 389, 390-391 ( 696 SE2d 642 ) (2010). 6 The Final Disposition imposed certain fines and charges as special conditions of probation and required Appellant to have no contact whatsoever with the victim, to successfully complete sex offender evaluation and treatment at his own expense, and to register as a sex offender as mandated by statute.

2009See Braithwaite v. State, 275 Ga. 884, 886 (2) ( 572 SE2d 612 ) (2002) (counsel reasonably chose silence as response to State’s *51 improper closing argument). (c) Noellien also argues that the transcript of the presentence hearing shows that the trial court relied on details of his criminal history not properly before the court.

2009See Braithwaite v. State, 275 Ga. 884, 886 (2) ( 572 SE2d 612 ) (2002) (counsel reasonably chose silence as response to State’s *51 improper closing argument). (c) Noellien also argues that the transcript of the presentence hearing shows that the trial court relied on details of his criminal history not properly before the court.

2007See Schmerber, supra, 384 U. S. at 761 and n. 5 (holding that “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” and that while “all evidence received in court is ‘testimonial’ or ‘communicative’ ” in that it communicates to the jury facts about defendant’s condition, “the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and [the Court] uses these words subject to the same limitations”). (a) Requiring a defendant to produce at

2007See Schmerber, supra, 384 U. S. at 761 and n. 5 (holding that “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” and that while “all evidence received in court is ‘testimonial’ or ‘communicative’ ” in that it communicates to the jury facts about defendant’s condition, “the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and [the Court] uses these words subject to the same limitations”). (a) Requiring a defendant to produce at

2007See Couch, supra, 409 U. S. at 328 .

2007See Couch, supra, 409 U. S. at 328 .

2007See Williams v. Florida, 399 U. S. 78, 85 (90 SC 1893, 26 LE2d 446) (1970), where the United States Supreme Court held that a discovery rule requiring a criminal defendant intending to rely on an alibi defense to notify the State of the place where the defendant claimed to be at the time in question and of the names and addresses of his intended alibi witnesses is not “compelled” self-incrimination, and thus does not violate the Fifth Amendment.

2007Requiring a defendant to provide the prosecutor, prior to the guilt/innocence phase, with the identity of the witnesses the defendant intends to call to testify in the presentence hearing is not “merely accelerating the timing of his disclosure” as was deemed permissible in Williams v. Florida, supra, since the defendant may never intend to disclose a helpful sentencing phase witness who could be a harmful guilt/innocence phase witness.