☢ test - Í

Hight v. State, 302 Ga.App. 826, 692 S.E.2d 69 (March 12, 2010). At defendant’s burglary trial, no abuse of discretion where trial court announced before sentencing hearing that it had already decided on (maximum) sentence. “After hearing from the victims and from Hight himself, the trial court stated ‘I wrote the sentence out before I even came in here this morning ... I already knew from the [trial] evidence and all what I was going to do.’” “‘[T]his court will not disturb a sentence within the statutory limits.... [Hight] has no cause for complaint that the court, in the exercise of its discretion, declined to probate or suspend a portion of the recidivist sentence.’ (Footnote and punctuation omitted.) Henderson v. State, 247 Ga.App. 31, 32(2) (543 S.E.2d 95) (2000).” Marshall v. State, 294 Ga.App. 282, 668 S.E.2d 892 (October 29, 2008). Record did not support defendant’s contention that trial court failed to exercise its discretion in sentencing, although prosecutor “erroneously informed the trial court that he could not probate or suspend any part of Marshall's recidivist sentence. … At the sentencing hearing, the trial court asked both Marshall and his counsel if they had any evidence to offer in mitigation of the sentence. ‘Knowing that it was required to impose the maximum sentence, the trial court obviously would not have inquired about mitigating evidence unless it was prepared to consider that evidence in connection with probation or suspension of the maximum sentence.’ Knight v. State, 221 Ga.App. 92, 93 (470 S.E.2d 486) (1996), quoting Cox v. State, 205 Ga.App. 375, 376(2) (422 S.E.2d 68) (1992). Compare Scott v. State, 248 Ga.App. 542, 545(2) (545 S.E.2d 709) (2001). ‘In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing [Marshall's] sentence.’ Cox, 205 Ga.App. at 376(2).” Accord, Reese v. State , 313 Ga.App. 746, 722 S.E.2d 441 (January 27, 2012) (defense counsel’s erroneous comment to court that it couldn’t probate part of sentence isn’t evidence that trial court also believed that). Hwang v. State, 293 Ga.App. 815, 668 S.E.2d 325 (October 3, 2008). Trial court erred in ruling that defendant’s conviction for driving on suspended license carried mandatory minimum sentence of ten days to serve in jail which could not be probated. On second offenses for driving on suspended license, “OCGA § 40-5-121 provides that the defendant ‘shall be guilty of a high and aggravated misdemeanor and shall be punished by imprisonment for not less than ten days nor more than 12 months,.’ … Relying on the statute's use of the word ‘shall,’ the trial court stated that it was without discretion to probate or suspend Hwang's ten day jail term. This holding, however, was incorrect as a matter of law. Under OCGA § 17-10-1, a judge may ‘suspend or probate all or any part of a sentence’ unless: (i) the crime of which the defendant is convicted is punishable by ‘life imprisonment, life without parole, or the death penalty’ (OCGA § 17-10-1(a)(1)); or (ii) the statute under which the defendant was convicted explicitly prohibits the trial judge from probating or suspending any part of the statutorily required sentence. Knight v. State, 243 Ga. 770, 774(2) (257 S.E.2d 182) (1979); Blevins v. State, 270 Ga.App. 388, 395(5) (606 S.E.2d 624) (2004). Such circumstances were not present in this case, and the trial court therefore had the discretion to suspend or probate any or all of Hwang's ten day jail sentence.” Williams v. State, 293 Ga.App. 193, 666 S.E.2d 703 (July 18, 2008). “Williams bears the burden of making an affirmative showing that the court refused to consider probation. See Smith v. State, 269 Ga.App. 506, 507(2) (604 S.E.2d 587) (2004). (‘[i]n the absence of any affirmative showing to the contrary, the court is presumed to have exercised its discretion in imposing sentence’ and to have considered probation) (punctuation omitted). Yet at no point during resentencing did the court indicate that it did not consider probation as a possible punishment. Rather, as the only evidence that the court did not consider probation, Williams points to the court's statement that despite Williams's improved behavior in prison while he was on medication and not ingesting alcohol, the court could not ‘help’ him. This was hardly a statement that the court was refusing to consider probation as a part of the sentence. Accordingly, we hold Williams has not made the necessary showing.” Accord, Muhammad v. State , 242 Ga.App. 540, 529 S.E.2d 418 (February 9, 2000). Bradshaw v. State, 237 Ga.App. 627, 516 S.E.2d 333 (April 12, 1999). Defendant’s burglary sentence reversed and remanded for resentencing where trial court apparently believed, erroneously, that it had no discretion to probate part of recidivist sentence. “As [ State v. Carter , 175 Ga.App. 38, 332 S.E.2d 349 (1985),] makes clear, OCGA § 17-10-7(a) required the trial court to impose the maximum sentence but gave it discretion to probate or suspend part of that sentence. Subsection (c), which prohibits parole, did not take away that discretion. …’ (Citations and punctuation omitted; emphasis in original.) Banks v. State, 225 Ga.App. 754, 757, 484 S.E.2d 786 (1997).” T. DNA SAMPLES Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (September 24, 2007). Trial court properly ruled upholding “the constitutionality of OCGA § 24-4-60, which requires any person convicted of a felony and incarcerated in a State