MCFADDEN, P. J., RAY and RICKMAN, JJ.
MCFADDEN, PRESIDING JUDGE.
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.
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)
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.
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.
The entry of Bennett's DNA profile into CODIS.
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
§ 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.
time Bennett's DNA sample was taken, the First Offender
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 ...