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Keyton v. State, 257 Ga.App. 380, 571 S.E.2d 423 (September 13, 2002). Defendant was sentenced to serve 12 months in jail for driving on an expired tag. Defendant appeals, saying court erroneously considered circumstances of his arrest – he was prowling with the apparent (late at night, dark clothes, ski mask, box cutter, on probation for armed robbery) purpose of committing a burglary or robbery. Held, although prowling charge was dismissed due to a technical error in the accusation, the evidence of the circumstances of defendant’s arrest was properly before the court and could be considered in sentencing . Sentence was within statutory parameters and thus did not violate Eighth Amendment. Humphrey v. State, 257 Ga.App. 312, 571 S.E.2d 187 (September 6, 2002). On negotiated plea of guilty, defendant asked for first offender treatment. Court refused based on hearsay from the prosecutor. Held, sentencing decision could not be based on hearsay. Ordinarily, the court, when sitting without a jury, is presumed, absent any strong showing to the contrary, to separate legal evidence from facts not properly in evidence. However, here, the showing necessary to rebut the presumption exists. That is, there was no evidence offered to corroborate the hearsay statement. Distinguished, Williams v. State , 293 Ga.App. 193, 666 S.E.2d 703 (July 18, 2008) (sentence affirmed; trial court expressly stated it didn’t consider hearsay in sentencing). Gilbert v. State, 245 Ga.App. 544, 538 S.E.2d 104 (August 4, 2000). No error in sentencing defendant according to his plea deal with State following guilty pleas to child molestation and related charges. “While defendant's guilty plea waives any issue as to the admissibility of such evidence as it bears on defendant's conviction, it does not waive the use of inadmissible evidence at sentencing. Christenson v. State, 261 Ga. 80, 91(9), 402 S.E.2d 41 (1991). Because the right to challenge the admissibility of evidence on sentencing is thus not waived by a plea of guilty, a guilty plea reserving such right, as here, does not constitute a conditional guilty plea violating Hooten [ v. State, 212 Ga.App. 770, 770(1), 442 S.E.2d 836 (1994)].” No such inadmissible evidence shown here, however. Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (July 5, 2000). Capital murder conviction affirmed; in sentencing phase, trial court properly excluded letters from defendant’s children to her. “The trial court in Gissendaner's case expressed a reasonable concern about the reliability of hearsay statements written by young children under unknown circumstances and influences. Additionally, the availability of the hearsay declarants to serve as witnesses at trial and the availability of their grandmother to testify that they had written to their mother both undermined Gissendaner's assertion that admission of the hearsay statements was critical to her defense.” Child Hearsay Act didn’t apply in this context. Fuller v. State, 244 Ga.App. 618, 536 S.E.2d 296 (June 26, 2000). Following no contest pleas to theft by conversion, defendant’s sentence reversed and remanded; trial court erred in allowing State to compel defendant to testify at restitution hearing. Based on Mitchell v. United States , 526 U.S. 314, 119 S. Ct. 1307, 143 L.Ed.2d 424 (1999): a plea of guilty or no contest waives all rights attendant to trial, but privilege against self-incrimination exists beyond the confines of the trial. The incrimination is not complete until a sentence is fixed and the judgment becomes final. “‘Treating a guilty plea as a waiver of the privilege at sentencing would be a grave encroachment on the rights of defendants,’” Mitchell at 324. The fact that the defendant in Fuller entered a nolo contendere plea rather than a guilty one does not change the analysis. Likewise, rejects State’s argument that a restitution hearing “is akin to civil damages … though a restitution hearing is analogous in some ways to a civil proceeding, it is fundamental that restitution is punishment when ordered as part of a criminal sentence.” Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (April 5, 1999). Reversing Third Circuit; district court erred in holding that a) self-incrimination privilege didn’t apply in sentencing hearing, and b) court could draw negative inferences from defendant’s silence. Defendant pled guilty to drug charges, reserving the right to contest the amount of the drugs – an important factor in sentencing. Defendant declined to testify or present evidence at sentencing, and Government’s evidence was equivocal at best, but the district court made a finding adverse to defendant, expressly stating that its finding was based in part of defendant’s silence at sentencing. Held: 1. defendant’s guilty plea wasn’t “a waiver of the privilege against compelled self-incrimination with respect to all the crimes comprehended in the plea.” Contrary to Government’s argument, participation in plea colloquy didn’t amount to waiver. “The purpose of a plea colloquy is to protect the defendant from an unintelligent or involuntary plea. The Government would turn this constitutional shield into a prosecutorial sword by having the defendant relinquish all rights against compelled self- incrimination upon entry of a guilty plea, including the right to remain silent at sentencing.” “Nor does Federal Rule of Criminal Procedure 11, which governs pleas, contemplate the broad waiver the Government envisions. … Of course, a court may discharge its duty of ensuring a factual basis for a plea by ‘question[ing] the defendant under oath, on the