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McCLURE v. THE STATE.
A95A1240.
BEASLEY, Chief Judge.
D.U.I., etc. Clayton State Court. Before Judge Carbo.
McClure pleaded guilty to two counts each of DUI, OCGA 40-6-391, and driving with a suspended license, OCGA 40-5-121, and one count each of driving without proof of insurance, OCGA 40-6-10; improper lane usage, OCGA 40-6-123; unlawful use of license, OCGA 40-5-125; giving a false name to a law enforcement officer, OCGA 16-10-25; impeding traffic, OCGA 40-6-184; and open container, a county ordinance violation. The latter is also prohibited by state law, OCGA 40-6-253, which was not charged. 1
On each DUI, which occurred less than two weeks apart, she received a twelve-month consecutive sentence, a $1,000 fine, and a $25 assessment for court costs for publishing her photo pursuant to OCGA 40-6-391 (j) because she was convicted of three DUIs within five years. The court imposed concurrent 12-month sentences on the remaining charges and the required $200 fine on the driving without proof of insurance count. OCGA 40-6-10.
McClure's sole enumeration of error is that the trial court abused its discretion in that her sentence violates the Eighth Amendment's guarantee against cruel and unusual punishment because it is excessive and disproportionate to the offenses charged. She cites but does not separately argue a violation of the state constitution, an independent ground. Thus we will not consider it, as it was not properly pursued. Merriman v. State, 201 Ga. App. 817, 818 (1) (412 SE2d 598) (1991).
The Eighth Amendment protects against cruel and unusual punishment, a concept which prohibits, among other things, arbitrary and disproportionate sentences. Lambeth v. State, 257 Ga. 15, 16 (354 SE2d 144) (1987). Unless a sentence "is so overly severe or excessive in proportion to the offense as to shock the conscience," a legislatively authorized punishment does not ordinarily exceed the constitutional bound. Gordon v. State, 257 Ga. 439, 440 (360 SE2d 253) (1987). It could, if the court abused its discretion in imposing a sentence which is excessive and disproportionate in a specific case, which is what appellant claims. She does not contend that the sentence parameters fixed by the legislature are themselves unconstitutional.
The legislature provided for a maximum sentence of 12 months imprisonment, a fine of $1,000, and not less than 40 hours of community service on each DUI count when it is the first such offense, with a higher maximum for several and subsequent offenses. OCGA 40-6-391 (c). For the misdemeanor counts, it authorized a term of imprisonment not to exceed 12 months, a fine not to exceed $1,000, or both. OCGA 17-10-3; 40-6-10 (a) (1); 40-6-391 (c) (3). The county ordinance is not in the record, so we cannot review that sentence. See Williamson v. City of Tallapoosa, 238 Ga. 522, 525 (233 SE2d 777) (1977). Consecutive sentences are permitted where separate and distinct crimes are charged. OCGA 17-10-10; Hart v. State, 137 Ga. App. 644 (3) (224 SE2d 755) (1976). The sentences McClure received were well within what is legislatively authorized and do not shock the conscience, particularly considering appellant's record and repeated disregard of the law and the safety of others.
McClure's argument that the court committed error by failing to sentence her to a probationary period in which to pay her fine is without merit. OCGA 40-6-391 (g) permits trial courts, but does not require them, to allow a defendant to pay a fine in installments in order to avoid economic hardship.
Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.
Notes
1  McClure was unrepresented when she entered her plea. The court subsequently appointed counsel, who filed motions to modify the sentence and withdraw the plea. At a hearing on the motion to withdraw the plea, McClure informed her attorney that she wished to withdraw that motion, which was then dismissed. McClure does not challenge her lack of representation during the plea.
Pandora E. Terry, for appellant.
DECIDED AUGUST 17, 1995.
Thursday May 21 07:49 EDT


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