Atlanta Criminal Lawyer Blog
Shoplifting is illegal in Georgia. Shoplifting can be charged when the defendant performed actions with the intent of taking merchandise without paying or of depriving the owner of possession of merchandise or its value. Shoplifting includes altering price tags, switching labels, transferring merchandise between containers, or otherwise causing less to be paid for a particular item. It can be charged as either a misdemeanor or a felony, depending on how much was stolen and whether there were any aggravating circumstances.
In a recent appellate decision, a Georgia jury found the defendant guilty of shoplifting. The defendant had entered guilty pleas in four earlier shoplifting cases, and the government presented these so that it could ask for recidivist punishment under OCGA § 16-8-14 (b)(1)(C). Under this code section, when somebody is convicted of a fourth or subsequent shoplifting offense, and the earlier convictions were either misdemeanors or felonies or a combination, the defendant commits a felony and must be punished with imprisonment for 1-10 years without suspending or deferring the first year of the sentence. The defendant is considered a recidivist or repeat offender and sentenced accordingly. In this case, the trial court sentenced the defendant as a recidivist.
The defendant appealed. He argued that he shouldn’t have been sentenced as a recidivist because the government didn’t establish he had waived his right to counsel in two of the prior shoplifting convictions.
When using recidivist sentencing, the government must show the existence of prior guilty pleas that were entered while an attorney represented the defendant. If an attorney did not represent a defendant at the time of a guilty plea, the government has to show the defendant waived his or her right to counsel in that case. Usually the government submits proof by presenting a transcript or docket entry that shows the right to counsel was waived. If the government is able to do this, there is a presumption of regularity. The defendant can rebut the presumption only by showing irregularities.
In this case, the defendant argued that the government had to prove he waived his right to counsel. The defendant argued that the government had to prove he knew his guilty pleas could later be considered in order to sentence him as a recidivist for a future offense. The appellate court explained that the presumption of regularity means that the government only needs to show evidence that the defendant waived the right to counsel. Once that’s established, it is presumed the defendant waived the right knowingly as well as intelligently, and the plea wouldn’t have been accepted by the trial court if it were otherwise.
In this case, the government introduced documents that showed the defendant waived his right to counsel. The defendant then had to present evidence to show the pleas were invalid by providing testimony or the plea transcript. The accused couldn’t simply assert that his plea wasn’t made knowingly or intelligently. The defendant didn’t offer any evidence showing that the pleas weren’t valid. Therefore, the trial court could rely on the government’s evidence to sentence him as a recidivist.
If you are accused of shoplifting or another crime in Georgia, there may be serious consequences. Contact experienced criminal defense attorney Tom Nagel at (404) 255-1600 or via our online form.
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