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KNIGHT v THE STATE.
A96A0511.
JOHNSON, Judge.
Drug violation. Chatham Superior Court. Before Judge Oliver.
Gus Knight was convicted of selling cocaine. The trial judge sentenced Knight to the maximum term of 30 years imprisonment as authorized by OCGA 16-13-30 (d). Knight appeals, arguing that the judge failed to exercise his discretion to probate part of the sentence and failed to give Knight an opportunity to present mitigating evidence as to why part of the sentence should be probated. These arguments are not supported by the record.
The trial transcript shows that after the jury returned its guilty verdict, the judge said he would hear any evidence in mitigation or aggravation of punishment. Rather than offering mitigating evidence as requested by the judge, Knight asked that the jury be polled, and the court granted that request. After the jury was polled, the State introduced evidence of Knight's two prior felony convictions of theft by taking and burglary. At that point, Knight introduced no evidence and made no argument in mitigation of the sentence. The judge ruled that he must impose the full thirty-year sentence because Knight is a felony recidivist. Knight then asked the court to consider probating part of the sentence. The judge responded: "The Court will give that some consideration, but that's what the law says." The judge then informed Knight of his appeal rights, after which Knight again asked the court to consider probating part of the sentence. The judge stated: "Well, you gentlemen give that some consideration and get back to me on it if you care to." There is no evidence in the record that Knight thereafter presented any proof or argument to the court that his sentence should be partially probated.
"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. It is only where the trial court has a legal discretion to exercise but fails to do so, instead resting the decision upon an erroneous point of law, that reversal must follow. In the absence of any affirmative showing to the contrary, the trial court is presumed to have exercised its discretion in imposing appellant's sentence." (Citations, punctuation and emphasis omitted.) Cox v. State, 205 Ga. App. 375, 376 (2) (422 SE2d 68) (1992). Because Knight has made no affirmative showing that the trial court failed to exercise its discretion or to give Knight a chance to present evidence in mitigation of the sentence, we must uphold the sentence. See Wallace v. State, 216 Ga. App. 718, 720-721 (5) (455 SE2d 615) (1995).
Spencer Lawton, Jr, District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.
M. Ross Becton, Jr, for appellant.
DECIDED APRIL 1, 1996.
Thursday May 21 05:45 EDT


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