MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
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.
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
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.
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
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.
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. But "conviction" does not appear
in the definitions provision of the statutes regarding theft,
OCGA §§ 16-8-1 through 16-8-23.
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
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).
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.
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.
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 ...