Opinion
A94A1291.
DECIDED JULY 28, 1994.
Burglary. Cobb Superior Court. Before Judge Robinson.
Michael H. Saul, for appellant.
Thomas J. Charron, District Attorney, D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
Chad Allen Stinnett appeals his convictions of burglary. His sole enumeration of error contends the trial court erred by denying him first offender treatment for this crime. Stinnett argues that the trial court improperly refused to exercise its discretion to grant him first offender treatment because he committed a misdemeanor after the offense for which he sought first offender treatment. Held:
Although the trial court, in fact, refused to give Stinnett first offender status because he committed a second offense, Stinnett misconstrues the import of the trial court's remarks. The trial court stated that it was aware that the misdemeanor did not preclude granting first offender status, but "[i]n the court's analysis he is not entitled to first offender because he, after committing one crime, committed another. Therefore he is not entitled to first offender treatment."
Under our law, a trial court "may" grant first offender treatment (OCGA § 42-8-60), but granting first offender treatment is discretionary with the trial court ( Todd v. State, 172 Ga. App. 231, 232 ( 323 S.E.2d 6); Welborn v. State, 166 Ga. App. 214, 215 ( 303 S.E.2d 755)), and a trial court is not required to grant first offender status. Head v. State, 203 Ga. App. 730, 731 ( 417 S.E.2d 398). Further, although a trial court may not use a mechanical sentencing formula (see Jones v. State, 208 Ga. App. 472 ( 431 S.E.2d 136); Cottingham v. State, 206 Ga. App. 197, 199 ( 424 S.E.2d 794)), nothing in this record suggests that this trial court had such a policy. On the contrary, it is apparent from the remarks quoted above that this trial court considered appellant's record and, exercising judicial discretion, determined that he was not entitled to first offender treatment. Accordingly, appellant's contention is without merit.
Judgment affirmed. Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.