☢ test - Í

State v. Jones, 265 Ga.App. 493, 594 S.E.2d 706 (February 10, 2004). Since OCGA § 16-13-30(b) required that a defendant convicted “of a second or subsequent [violation] shall be imprisoned for not less than ten years ” (emphasis in Court of Appeals), trial court erred in sentencing to twelve years with only seven in confinement. Accord, Fortson v. State , 283 Ga.App. 120, 640 S.E.2d 693 (December 20, 2006) (trial court properly ordered defendant’s fourth felony sentence be served without probation or parole); Eady (February 23, 2007), above; Thomas v. State , 321 Ga.App. 214, 741 S.E.2d 298 (April 3, 2013) (conviction for cocaine possession with intent to distribute, defendant’s fourth felony, required minimum ten years to serve without parole under OCGA § 17-10-7(c).). Goings v. State, 265 Ga.App. 296, 593 S.E.2d 751 (January 26, 2004). “OCGA § 17-10-6.1 and OCGA § 17-10-7(b)(2) are not in conflict so that one supplants the other, as Goings’ argument appears to assert. OCGA § 17-10-6.1 addresses mandatory sentencing upon commission of a first serious violent felony, while OCGA § 17-10-7(b)(2) addresses mandatory sentencing upon commission of a second serious violent felony. Accordingly, Goings’ argument [that the later enactment of § 17-10-6.1 modifies § 17-10-7] is substantively without merit.” Gilbert v. State, 265 Ga.App. 76, 593 S.E.2d 25 (December 16, 2003). Defendant complains that sentence does not specify whether recidivist sentence was entered under OCGA § 17-10-7(a) (for persons with one prior felony) or (c) (for persons with three or more prior felonies). “While it might have been the better practice for the trial court to plainly indicate on its final disposition which subsection of the repeat offender statute applies to Gilbert's recidivist sentence, the failure to do so does not amount to reversible error.” Shields v. State, 264 Ga.App. 232, 590 S.E.2d 217 (November 19, 2003). Defendant had no right to be sentenced by a jury under OCGA § 17-10-2 because he was facing a sentence of life without parole because the sentence was a mandatory recidivist sentence (although subject to being probated or suspended by the trial court). “A defendant has no right to a jury trial on a recidivism count.” Carswell v. State, 263 Ga.App. 833, 589 S.E.2d 605 (October 29, 2003). “It is clear that a repeat offender convicted of aggravated assault may be sentenced as a recidivist pursuant to OCGA § 17-10-7(a). (cit.) There is no restriction in the aggravated assault statute that limits the use of prior convictions to the guilt-innocence phase of trial such that they cannot be used again at the sentencing phase of trial. See OCGA § 16-5-21; compare King v. State , 169 Ga.App. 444, 444-445 (313 S.E.2d 144) (1984) (the State may not use same prior conviction to enhance sentence that it used at guilt-innocence phase to prove convicted-of-felony element of possession-of-firearm-by-convicted-felon charge, since that crime has specific statutory scheme relating to use of prior convictions for sentencing defendant as a recidivist). The trial court did not err in considering these prior convictions during the sentencing phase.” See also Hillman v. Johnson , 297 Ga. 609, 774 S.E.2d 615 (June 29, 2015) ( King limited to offenses where the prior felony is used both as an element of the new offense and to impose mandatory recidivist sentencing ). Spinner v. State, 263 Ga.App. 802, 589 S.E.2d 344 (October 27, 2003). Trial court properly considered defendant’s conviction for family violence battery a felony in light of his prior nolo contendere plea for the same offense. “OCGA § 16-5-23.1(f) is a recidivist statute that simply enhances the punishment for repeat offenders of family violence battery. And with respect to conviction under recidivist statutes, the law does recognize that a nolo plea can constitute proof of a prior conviction.” Lewis v. State, 263 Ga.App. 98, 587 S.E.2d 245 (September 5, 2003). Before recidivist sentence can be entered based on foreign conviction, the State must prove that the conviction was for conduct that would also constitute a felony in Georgia.” Here, the Tennessee aggravated assault statute encompasses behavior that would only be a misdemeanor in Georgia; since the State did not prove the facts underlying the Tennessee conviction, court should not have relied on it. Remanded for resentencing because not clear from record whether court did, in fact, intend sentence to be recidivist sentence (but sentence entered was consistent with recidivist sentence). State v. Jones , 253 Ga.App. 630, 560 S.E.2d 112 (February 11, 2002). “The various subsections of OCGA § 17-10-7 must be read together. [Cit.] And, if two of the subsections apply, a trial court must apply them both. [Cit.] This is not to say, however, that a trial court completely lacks discretion in sentencing a recidivist. Under OCGA § 17- 10-7(a), a trial court retains authority to suspend or probate a portion of the sentence. And, under subsection (c), a felon must ‘serve the maximum time provided in the sentence of the judge.’ [Cit.] Accordingly, it is conceivable that a felon would not be required to actually serve the maximum sentence if the trial court decided, in its discretion, to suspend or probate a portion