FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J., and BOGGS, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

February 24, 2016

In the Court of Appeals of Georgia

A15A2265. BECKER v. THE STATE.

PHIPPS, Presiding Judge.

In February 2013, Richard Becker was found guilty of possession of

methamphetamine1and obstruction of an officer, and the trial courtsentenced him as

a recidivist to fifteen years, with the firstseven years to be served in confinement and

the remaining years to be served on probation.

2 Becker challenges the sentence

imposed for the possession of methamphetamine charge. Because, as the state points

out in its appeal brief, the record reflects that the trial court erroneously believed that

it had no discretion in sentencing Becker to the maximum period of time prescribed

1 See OCGA §§ 16-13-30 (a), (c) (2012); 16-13-26 (3) (B) (2012); Ga. L. 2012,

pp. 899, 915, 949, §§ 3-7A (a), (c), 9-1 (a). 

2 Becker was sentenced to 15 years for possession of methamphetamine, and

12 months (concurrent) for obstruction of an officer. 
for the punishment of possession of methamphetamine, the case must be remanded

for resentencing.

1. The trial courtsentenced Becker as a recidivist pursuant to OCGA § 17-10-7

(a) and (c). OCGA § 17-10-7 (a) pertinently provides that “[a]ny person who, after

having been convicted of a felony offense . . . commits a felony punishable by

confinement in a penal institution shall be sentenced to undergo the longest period

of time prescribed for the punishment of the subsequent offense of which he . . .

stands convicted”; but the “trial judge may . . . probate or suspend the maximum

sentence prescribed for the offense.” OCGA § 17-10-7 (c) pertinently provides that

a defendant convicted of a fourth felony “shall . . . serve the maximum time provided

in the sentence of the judge” and “shall not be eligible for parole until the maximum

sentence has been served.”

OCGA § 17-10-7 (b.1) provides that: “Subsections (a) and (c) of this Code

section shall not apply to a second or any subsequent conviction for any violation of

subsection (a) . . . of Code Section 16-13-30.” In 2012, the General Assembly added

subsection (b.1) to OCGA § 17-10-7; in the same Act, the General Assembly added

language to subsections (a) and (c) of OCGA § 17-10-7, providing that (a) and (c)

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applied “[e]xcept as otherwise provided in subsection . . . (b.1). . . .”

3 Subsection (b.1)

and the revisions to subsections (a) and (c) became effective on July 1, 2012, and

applies to offenses which occurred on or after that date.4

In this case, the crimes were committed in August 2012. Therefore, pursuant

to the then newly-enacted subsection (b.1) and to the revisions to subsections (a) and

(c), the trial court erred in sentencing Becker as a recidivist pursuant to OCGA § 17-

10-7 (a) and (c), and in believing that it was required to impose upon Becker the

maximum sentence for possession of methamphetamine.5 Accordingly, the sentence

imposed by the trial courtfor possession of methamphetamine is vacated, and the case

is remanded for resentencing as to that count.

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2. Because we are vacating Becker’s sentence for possession of

methamphetamine and remanding this case for resentencing asto that count, Becker’s

3

 See Ga. L. 2012, pp. 899, 926, 949, §§ 4-4, 9-1 (a). 

4

 Id. 

5 See von Thomas v. State, 293 Ga. 569, 570, n. 1 (748 SE2d 446) (2013); see

generally Hobbs v. State, 334 Ga. App. 241, 244-246 (3) (a) (779 SE2d 15) (2015);

Pardon v. State, 322 Ga. App. 393, 399 (3) (745 SE2d 658) ( 2013).

6 See Hobbs, supra at 246 (3) (a); Holland v. State, 310 Ga. App. 623, 629-630

(5) (714 SE2d 126) (2011).

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contention that the trial court abused its discretion when it denied his request to

reduce hissentence for possession of methamphetamine on the basisthat the sentence

was grossly disproportionate to the underlying crime and was cruel and unusual

punishment is rendered moot.7

Judgment affirmed, sentence affirmed in part and vacated in part, and case

remanded for resentencing. Doyle, C. J., and Boggs, J., concur.

7

 See Hobbs, supra at 246-247 (3) (b); Holland, supra at 630 (6).

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