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Bennett v. State

Court of Appeals of Georgia, Fifth Division

June 11, 2018

BENNETT
v.
THE STATE.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          MCFADDEN, PRESIDING JUDGE.

         Denzel Bennett was convicted of burglary in a bench trial on stipulated facts. He appeals the denial of his motion to suppress evidence stemming from a DNA (deoxyribonucleic acid) sample taken from him when he was incarcerated as a first offender on another offense. He argues that the evidence is inadmissible because he was a first offender when the Georgia Bureau of Investigation ("GBI") analyzed the DNA sample and created and entered his DNA profile into a database. We disagree. Under the plain language of the First Offender Act in effect at the time, Bennett was deemed to have been convicted while he was incarcerated, and therefore, his DNA had to be collected and analyzed under the DNA statute. So we affirm.

         1. Facts.

         On August 1, 2013, Bennett entered a plea as a first offender to one count of burglary. He was sentenced to five years, the first three years to be served in confinement and the remainder to be served on probation. When Bennett came into the custody of the Georgia Department of Corrections, the department obtained a DNA sample from him and submitted it to the GBI crime lab. Lab personnel process such a sample to develop a DNA profile, which they enter into the DNA database known as CODIS. (CODIS is an acronym for the Combined DNA Index System, a national database of DNA profiles. Daniels v. State, 298 Ga. 120, 122 (779 S.E.2d 640) (2015).)

         On November 15, 2013, the Richmond County Sheriff's Office received notice from the crime lab that Bennett's DNA matched the DNA of blood found at the scene of a 2010 burglary. The perpetrator of that burglary had never been identified. A sheriff's investigator compared Bennett's fingerprints to fingerprints obtained at the 2010 crime scene and confirmed that they matched. Bennett was indicted for the 2010 crime.

         After the trial court denied his motion to suppress, Bennett and the state stipulated to the facts. The trial court convicted Bennett and sentenced him to ten years, two years to be served in confinement and the remainder to be served on probation. Bennet filed this appeal.

         2. The entry of Bennett's DNA profile into CODIS.

         Bennett argues that the entry of his DNA profile into CODIS was not authorized by OCGA §§ 35-3-160, a provision of the DNA Act, and 42-8-65 (c), a provision of the First Offender Act.

         OCGA § 35-3-160 (b) provides:

Any person convicted of a felony offense who is held in a detention facility or placed on probation shall at the time of entering the detention facility or being placed on probation have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. . . . It shall be the responsibility of the detention facility detaining or entity supervising a convicted felon to collect the samples required by this Code section and forward the sample to the [Division of Forensic Sciences of the Georgia Bureau of Investigation] unless such sample has already been collected by the department or another agency or entity.

OCGA § 35-3-160 (c) requires the Division of Forensic Sciences to perform the analysis of the sample. The statute requires the GBI to store and maintain in a DNA data bank the identification characteristics of the profile resulting from the DNA analysis. CODIS is the DNA data bank used by the GBI.

         At the time Bennett's DNA sample was taken, the First Offender Act provided:

Notwithstanding any other provision of this article, any person who is sentenced to a term of confinement pursuant to [the First Offender Act] shall be deemed to have been convicted of the offense during such term of confinement for all purposes except that records thereof shall be treated as any other records of first offenders under this article and except that such ...

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