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Beasley v. State

Court of Appeals of Georgia, Fifth Division

March 15, 2018

BEASLEY
v.
THE STATE

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         Keith Malik Beasley was indicted for felony theft by shoplifting. He appeals the denial of his motion to quash and special demurrer, arguing that his prior nolo contendere plea to shoplifting was not a conviction for purposes of the sentencing provision of the shoplifting statute and therefore that he cannot be found guilty of a felony in this case. We agree and reverse.[1]

         Beasley was charged with theft by shoplifting and giving a false name and date of birth. The indictment informed Beasley that he was being charged with felony theft by shoplifting under OCGA § 16-8-14 (b) (1) (c) because he had three prior convictions of theft by shoplifting. Beasley filed a motion to quash and special demurrer, arguing that he could not be charged with felony theft by shoplifting because one of his prior charges was resolved by a plea of nolo contendere. The trial court denied Beasley's motion. We granted Beasley's application for interlocutory appeal, and this appeal followed.

         Beasley does not contest that he has two prior shoplifting convictions for purposes of the statute. But he argues that his plea of nolo contendere cannot be used as a third conviction since the shoplifting statute does not explicitly allow the use of a plea of nolo contendere. We agree. Beasley's argument is supported by the plain language of the statutes at issue.

         Our analysis turns on current and former versions of the presentence hearing, recidivism, and nolo contendere statutes. The relevant parts of those statutes are set out in the margin.[2]

          The nolo contendere statute directs, "Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose. . . ." OCGA § 17-7-95 (c). The sentencing provision in the theft by shoplifting statute does not otherwise provide: "Upon conviction of a fourth or subsequent offense for shoplifting, where the prior convictions are either felonies or misdemeanors, or any combination of felonies and misdemeanors, as defined by this Code section, the defendant commits a felony . . . ." OCGA § 16-8-14 (b) (1) (C). So the relevant sentencing provision does not provide that a plea of nolo contendere counts as a conviction.

         The applicable statutory definition of "conviction" does not otherwise provide either. The definition of "conviction" generally applicable under Title 16, Crimes and Offenses, provides, "'Conviction' includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty." There are, as detailed in the margin, additional or superceding definitions of "conviction" in the statutes regarding a number of offenses.[3] But "conviction" does not appear in the definitions provision of the statutes regarding theft, OCGA §§ 16-8-1 through 16-8-23.

          So under the plain language of the applicable statutes, a nolo contendere plea does not count as a prior conviction for sentencing purposes under the theft by shoplifting statute. See Corbitt v. State, 190 Ga.App. 509, 509 (1) (379 S.E.2d 535) (1989) (under the plain language of the nolo contendere statute, a defendant's plea of nolo contendere cannot be admitted as a similar transaction); Beal v. Braunecker, 185 Ga.App. 429, 432 (2) (364 S.E.2d 308) (1987) (under the plain language of the nolo contendere statute, a defendant's plea of nolo contendere is not admissible to support a plaintiff's claim for punitive damages).

         While we "have sanctioned the use of past nolo contendere pleas for sentencing purposes under recidivist statutes, we have not approved such use when proof of the prior conviction is an element of the crime." Blackmon v. State, 266 Ga.App. 877, 879 (598 S.E.2d 542) (2004). But the first clause of that sentence is inconsistent with subsequent Supreme Court of Georgia authority. The qualification in Blackmon is the controlling principle today. Our Supreme Court has since clarified that "any fact that serves to enhance a mandatory minimum sentence is an element of the crime . . . ." Jeffrey v. State, 296 Ga. 713, 718 (3) (770 S.E.2d 585) (2015) (overruling prior decision that held that "the family violence aspect of [an] aggravated assault - which elevates the mandatory minimum sentence from one year to three years - was merely a sentencing factor and not an element of the aggravated assault offense") (citations and emphasis omitted).

         So the prior shoplifting convictions that would elevate Beasley's mandatory minimum sentence - to a year's imprisonment from 30 days imprisonment, 120 days confinement in a community correctional facility, or 120 days house arrest (compare subsections (b) (1) (B) and (b) (1) (C) of OCGA § 16-8-14) - are not merely sentencing factors but are an element of the shoplifting offense. Because "we have not approved [the use of nolo contendere pleas] when proof of the prior conviction is an element of the crime, " Blackmon, supra, 266 Ga.App. at 879, the state may not use Beasley's nolo contendere plea to shoplifting to elevate the current case to a felony.

         The state understandably relies on Spinner v. State, 263 Ga.App. 802 (589 S.E.2d 344) (2003). But Spinner must be overruled. In Spinner, we held that the defendant's prior nolo contendere plea to family-violence battery could be used to enhance his sentence to felony status for his current conviction of family-violence battery. Id. Spinner depended on the rationale our Supreme Court overruled in Jeffrey, supra, that is, that "[p]roof of the prior conviction is not an element of the crime" of felony family-violence battery. Spinner at 803 (citation omitted).

          Spinner also relied on James v. State, 209 Ga.App. 389, 390 (2) (433 S.E.2d 700) (1993), citing it as support for the proposition that "with respect to [a] conviction under recidivist statutes, the law does recognize that a nolo plea can constitute proof of a prior conviction." Spinner, supra at 804 (citation omitted). But Division 2 of James must be overruled because, as we explain above, the plain language of the statutes demands otherwise.

         James in turn mistakenly relies on Miller v. State, 162 Ga.App. 730, 732-734 (4) (b) (292 S.E.2d 102) (1982), overruled in part on other grounds in Matthews v. State, 268 Ga. 798, 803 (4) (493 S.E.2d 136) (1997). James's reliance on Miller is misplaced because Miller was decided on the basis of implicit legislative intent and this court's view of "the public interest" in subjecting persons like Miller ...


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