Golden appeals a sentence imposed on June 13, 1985, upon remand to the Bibb County Superior Court by the Eleventh Circuit Court of Appeals. For the factual and procedural history of this case, see Golden v. Newsome, 755 F2d 1478 (11th Cir. 1985), and Golden v. State, 145 Ga. App. 36 (243 SE2d 303) (1978)
Appellant's sole contention in this appeal is that a prior 1963 conviction which did not show on its face that he was represented by counsel at trial was considered by the judge at the resentencing hearing, thereby requiring still another sentencing. We do not agree. Appellant was being resentenced for a 1977 felony conviction on which he was originally sentenced to serve seven years. Pursuant to OCGA 17-10-2
the State introduced four prior convictions in aggravation of punishment. Two of these convictions, including the one objected to here, occurred prior to 1977 and were introduced at the original sentencing. The other two occurred subsequent to 1977. Defense counsel objected to introduction of the pre-1977 convictions to "buttress the sentence, to enhance it further," but conceded their relevance "if the sentence remains the same or is lowered." Appellant was resentenced to serve seven years on the 1977 conviction and no further objection was raised.
Cases such as Houser v. State, 234 Ga. 209 (15) (214 SE2d 893) (1975)
, and Hopper v. Thompson, 232 Ga. 417 (207 SE2d 57) (1974)
, holding otherwise, were controlled by the statute then in effect (Ga. L. 1970, pp. 949, 950; Code Ann. 27-2534) under which the jury, not the judge, imposed sentence in non-capital felonies. See also Copeland v. State, 160 Ga. App. 786 (12) (287 SE2d 120) (1981)
, expressly overruling the statement in Wells v. State, 151 Ga. App. 416 (7) (260 SE2d 374) (1979)
, that no objection is necessary to trigger appellate review of the sentencing phase of a trial. It is clear that the contested 1963 conviction was not used by the trial judge to increase the length of the sentence appealed from since it is the same as the original sentence imposed in 1977, and having conceded the propriety of considering the conviction in precisely such a situation, appellant cannot now contend that any prejudice resulted.