Woodall v. State

662 S.E.2d 549 (2008)

WOODALL v. The STATE.

No. A08A0321.

Court of Appeals of Georgia.

May 12, 2008.

Mary Erickson, for Appellant.

David McDade, Dist. Atty., Jeffrey L. Ballew, Asst. Dist. Atty., for Appellee.

MILLER, Judge.

A jury convicted Herbert L. Woodall of one count of criminal attempt to possess oxycodone with intent to distribute in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30). He was sentenced as a recidivist to 30 years confinement, to serve 20 in confinement and the remainder probated. Woodall appeals, contending that the trial court erred in sentencing him as a recidivist based on his 1982 and 1983 convictions for burglary upon guilty pleas. Woodall argues, and the State concedes, that neither record of prior conviction shows that he was represented by counsel or that he waived representation.

We affirm the judgments of conviction as to the instant charged offenses. We find clear error with respect to sentencing, however, since the record is silent as to whether the defendant entered his pleas of guilty voluntarily upon the advice of counsel.

[T]he burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel in all felony cases and those misdemeanor proceedings where imprisonment resulted[; that the] State carries burden of proving counseled plea by adducing a docket entry or other affirmative statement that the defendant waived the right to counsel[; and that i]f the record does not so show, the State bears the burden of showing waiver.

(Citations and punctuation omitted.) Nash v. State, 271 Ga. 281, 285, 519 S.E.2d 893 (1999); accord Smith v. State, 275 Ga.App. 60, 64(5), 619 S.E.2d 694 (2005). Here, the State concedes its failure to show that Woodall's prior convictions were adjudged upon the advice of counsel or following the waiver thereof. For these reasons, we must remand for a hearing on resentencing.

Judgment affirmed in part and case remanded in part with direction.

BLACKBURN, P.J., and ELLINGTON, J., concur.