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BENHAM, Judge.
D.U.I. Clarke State Court. Before Judge Pittard.
On October 28, 1983, appellant was arrested and charged with driving under the influence of alcohol in violation of OCGA 40-6-391. Appellant pled guilty and the sentencing hearing was held on April 18, 1984, at which time appellant tendered a petition to enter a plea of nolo contendere. After the evidence was presented, the court denied the petition and pronounced sentence. The sole enumeration of error on appeal is that the trial court abused its discretion by refusing to consider the petition before hearing any evidence. We find no merit in this assertion and affirm the judgment.
OCGA 40-6-391.1 (a) states that "[t]he decision to accept a plea of nolo contendere to a charge of violating Code Section 40-6-391 shall be at the sole discretion of the judge . . ." Therefore, a judge is under no obligation to accept such a plea simply because the petition is acceptable on its face. See Bennett v. State, 153 Ga. App. 21 (5) (264 SE2d 516) (1980). The record indicates that the trial court based its rejection of the petition on the fact that appellant had been arrested twice within five years for D.U.I. (see OCGA 40-6-391.1); it also shows that the court reviewed the pre-sentence report before the hearing, did not formally deny the petition until all the evidence had been presented, and gave appellant the opportunity to speak on his own behalf before pronouncing sentence. Under those circumstances we find that the trial court did not abuse its discretion in denying the petition.
Kennedy R. Packer, for appellant.
Thursday May 21 17:22 EDT

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