Opinion
28719.
SUBMITTED MARCH 12, 1974.
DECIDED APRIL 4, 1974. REHEARING DENIED APRIL 23, 1974.
Habeas corpus. Tattnall Superior Court. Before Judge Caswell.
Cherthel Lee Staggers, pro se. Arthur K. Bolton, Attorney General, William F. Bartee, Jr., Assistant Attorney General, John B. Ballard, Jr., Deputy Assistant Attorney General, for appellee.
The appellant was convicted of molesting his minor daughter and was sentenced to 15 years imprisonment. He was granted a new trial because of the insufficiency of the evidence. Staggers v. State, 119 Ga. App. 85 ( 166 S.E.2d 411). Thereafter he unsuccessfully sought writs of habeas corpus on the issue of double jeopardy to prevent a retrial. Staggers v. State, 225 Ga. 581 ( 170 S.E.2d 430); Staggers v. Stynchcombe, 319 F. Supp. 1305 (N. D. Ga. 1970), affirmed 436 F.2d 585 (5th Cir. 1971). At his second trial the jury set his sentence at 20 years and recommended misdemeanor punishment. The trial judge did not accept the recommendation and sentenced the appellant to 20 years imprisonment. The appellant contends in this habeas corpus proceeding that this second sentence was the result of vindictiveness since it is a harsher sentence than the first.
The trial court found that during the retrial of the appellant and by agreement of counsel, a copy of the original indictment was sent to the jury which copy did not show the prior conviction. After the jury convicted and sentenced appellant on the second trial such findings were entered on the original indictment. The jury was not cognizant of the results of the first trial and it follows that the second sentence of the jury could not have been the product of vindictiveness. Chaffin v. Stynchcombe, 412 U.S. 17, 27 ( 93 S.C. 1977, 36 L.Ed.2d 714); Grace v. Caldwell, 231 Ga. 407 ( 202 S.E.2d 49).
The appellant also contends that the trial court was bound to accept the misdemeanor punishment recommended by the jury. We do not agree. In Harris v. State of Ga., 216 Ga. 740 ( 119 S.E.2d 352), we held that it is in the "discretion of the trial judge whether he will approve such recommendation, and his action in the matter is final." Also Nelson v. Smith, 228 Ga. 117 (3) ( 184 S.E.2d 150). As to the present law on jury recommendations, see Ga. L. 1968, pp. 1249, 1334 (Code Ann. § 26-3101).
Judgment affirmed. All the Justices concur.