Opinion
71319.
DECIDED FEBRUARY 10, 1986.
Sentence appeal. Bibb Superior Court. Before Judge Culpepper.
Sandra J. Popson, for appellant.
Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.
Golden appeals a sentence imposed on June 13, 1985, upon remand to the Bibb County Superior Court by the Eleventh Circuit Court of Appeals. For the factual and procedural history of this case, see Golden v. Newsome, 755 F.2d 1478 (11th Cir. 1985), and Golden v. State, 145 Ga. App. 36 ( 243 S.E.2d 303) (1978).
Appellant's sole contention in this appeal is that a prior 1963 conviction which did not show on its face that he was represented by counsel at trial was considered by the judge at the resentencing hearing, thereby requiring still another sentencing. We do not agree. Appellant was being resentenced for a 1977 felony conviction on which he was originally sentenced to serve seven years. Pursuant to OCGA § 17-10-2 the State introduced four prior convictions in aggravation of punishment. Two of these convictions, including the one objected to here, occurred prior to 1977 and were introduced at the original sentencing. The other two occurred subsequent to 1977. Defense counsel objected to introduction of the pre-1977 convictions to "buttress the sentence, to enhance it further," but conceded their relevance "if the sentence remains the same or is lowered." Appellant was resentenced to serve seven years on the 1977 conviction and no further objection was raised.
Contrary to appellant's argument, waiver can result from the failure to object to the consideration of convictions not shown to have been attended by counsel. See McKisic v. State, 238 Ga. 644 (5) ( 234 S.E.2d 908) (1977); Wills v. State, 169 Ga. App. 260 (5) ( 312 S.E.2d 367) (1983); Fowler v. State, 159 Ga. App. 496 ( 283 S.E.2d 710) (1981). Cases such as Houser v. State, 234 Ga. 209 (15) ( 214 S.E.2d 893) (1975), and Hopper v. Thompson, 232 Ga. 417 ( 207 S.E.2d 57) (1974), holding otherwise, were controlled by the statute then in effect (Ga. L. 1970, pp. 949, 950; Code Ann. § 27-2534) under which the jury, not the judge, imposed sentence in non-capital felonies. See also Copeland v. State, 160 Ga. App. 786 (12) ( 287 S.E.2d 120) (1981), expressly overruling the statement in Wells v. State, 151 Ga. App. 416 (7) ( 260 S.E.2d 374) (1979), that no objection is necessary to trigger appellate review of the sentencing phase of a trial. It is clear that the contested 1963 conviction was not used by the trial judge to increase the length of the sentence appealed from since it is the same as the original sentence imposed in 1977, and having conceded the propriety of considering the conviction in precisely such a situation, appellant cannot now contend that any prejudice resulted.
Judgment affirmed. Deen, P. J., and Beasley, J., concur.