However, "[s]ince 1974 when Georgia adopted judge sentencing, OCGA § 17-10-2, it is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state's intention to seek recidivist punishment and of the identity of the prior convictions." Wainwright v. State , 208 Ga. App. 777, 778 (2) (a), 432 S.E.2d 555 (1993) (citation and punctuation omitted; emphasis supplied). See also Hendrixson , 251 Ga. at 853-855, 310 S.E.2d 526 ; Mitchell v. State , 202 Ga. App. 100, 100-101 (1), 413 S.E.2d 517 (1991).
Under some circumstances, not present here, the State is required to provide notice in the indictment if it seeks recidivism on a particular count. See generally Wainwright v. State , 208 Ga. App. 777, 778-779 (2) (a), 432 S.E.2d 555 (1993) ; Nordahl , 344 Ga. App. at 690-691 (1), 811 S.E.2d 465. The indictment here does not reflect that there were any recidivist counts.
Trial counsel provided some argument as to sentencing, but made no indication that he had evidence or witnesses to present in mitigation of Ellis's punishment. Significantly, the trial court did not rule that Ellis could not present witnesses to testify on his behalf; nor did Ellis make an offer of proof as to the content of the alleged witnesses' testimony. Cf. Wainwright v. State, 208 Ga.App. 777, 780–781(3), 432 S.E.2d 555 (1993) (rejecting defendant's claim that trial court erred in refusing to allow him to testify on his own behalf in mitigation of his sentence where the trial court never made a ruling that defendant could not testify, and where defendant did not object or request to make an offer of proof as to the content of his testimony). When the trial court announced the sentence and the reasons for it, Ellis made no objection.
Citing our decisions in Wainwright v. State and Favors v. State, the trial court denied the request and read the indictment to jurors in its entirety. 208 Ga. App. 777 ( 432 S.E.2d 555) (1993). 182 Ga. App. 179 ( 355 S.E.2d 109) (1987).
It is clear that a repeat offender convicted of aggravated assault may be sentenced as a recidivist pursuant to OCGA § 17-10-7(a). See generally Wainwright v. State, 208 Ga. App. 777, 778-780(2) ( 432 S.E.2d 555) (1993). There is no restriction in the aggravated assault statute that limits the use of prior convictions to the guilt-innocence phase of trial such that they cannot be used again at the sentencing phase of trial.
However, Howard's arguments are belied by the record, which shows that Howard's counsel was timely served with the prior convictions used in aggravation of Howard's sentence prior to trial. See Wainwright v. State, 208 Ga. App. 777, 780(2)(b) ( 432 S.E.2d 555) (1993); OCGA § 17-10-2(a). The trial court properly considered these timely-served prior convictions when sentencing Howard. See OCGA § 17-10-7(c).
This was sufficient to give Smith notice that the State would seek to use those prior convictions in aggravation of punishment. See Wainwright v. State, 208 Ga. App. 777, 778 (2) (a) ( 432 S.E.2d 555) (1993). 3. Smith argues that he was not allowed to thoroughly cross-examine an officer about hearsay information that formed the basis of the search warrant.
See Landers v. Smith, 226 Ga. 274, 276 (3) ( 174 S.E.2d 427) (1970). Under Georgia's old two-step felony trial procedure where sentence was imposed by the same jury which decided guilt, prior convictions had to be included in the indictment to be considered in aggravation of punishment. Wainwright v. State, 208 Ga. App. 777, 778 (2) ( 432 S.E.2d 555) (1993). Georgia now has judge sentencing, and recidivist punishment is no longer conditioned upon indictment of the defendant as a recidivist.
' [Cit.]"Wainwright v. State, 208 Ga. App. 777, 778 (2a) ( 432 S.E.2d 555) (1993); see Ross v. State, 210 Ga. App. 455, 458 (4) ( 436 S.E.2d 496) (1993). 6. Finally, Thompson contends he was sentenced as a recidivist in violation of his rights to due process and equal protection under the federal and state constitutions, because the burglary and criminal damage to property convictions resulted from pleas entered on the same date and concurrent sentences were imposed.
Crowder v. State, 218 Ga. App. 630, 631 (1) ( 462 S.E.2d 754) (1995). Lynn's subsequent amendment of her shoplifting plea from not guilty to guilty and her contemporaneous waiver of her right to trial by jury did not negate her prior waiver of any right of indictment. Lynn contends that Wainwright v. State, 208 Ga. App. 777, 778 (2) ( 432 S.E.2d 555) (1993), and Darty v. State, 188 Ga. App. 447, 448 ( 373 S.E.2d 389) (1988), require grand jury presentment because recidivism must be alleged by way of indictment. Lynn's reliance on Wainwright and Darty to support this contention is misplaced. In Wainwright, supra, and Darty, supra, the defendants had been brought to trial by indictment, and the opinions must be analyzed in that light.