On February 3, 1998, Vicky Zelenne Lynn was charged by accusation with one count each of criminal trespass, shoplifting, and being a habitual felon. Lynn was released on bond after her arrest. She entered a plea of not guilty on all charges. The state filed notice of intent to introduce prior convictions for sentencing purposes. Lynn then changed her plea to guilty of shoplifting but continued to plead not guilty as to the remaining charges. The trial court accepted her amended guilty plea and allowed her to litigate whether the shoplifting offense was a felony or a misdemeanor, whiсh involved the question of her previous shoplifting convictions.
In a bench trial, Lynn was convicted of the shoplifting and habitual felon charges; the court granted a motion to nolle prosequi the criminаl trespass charge.
At the sentencing hearing, the state introduced evidence of three prior shoplifting convictions. The trial court sentenced Lynn to confinement for ten years with service оf the last five years on probation, a $1,000 fine, and 200 hours of community service. She also was ordered to pay a $20 per month probation fee, $100 to the county jail fund, and $50 each to the victim assistance program and the police officers and prosecutors training fund.
Lynn filed a motion to modify or correct sentence. The trial court denied the motion. Lynn appeals.
1. Lynn contends thаt this case should be remanded for imposition of misdemeanor punishment because the state proceeded to trial by accusation rather than by indictment. We disagree.
In the case of
Hood v. State,
On the date the accusation was filed, OCGA § 17-7-70.1 (a) provided, inter alia, that in felony cases involving theft by shoplifting, in which defendants either have been bound over tо the superior court or have expressly waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendant shall be tried on such accusatiоns according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.
On December 11, 1997, Lynn posted bond on the shoplifting and criminal trespass counts. In
State v. Gilstrap,
The record also reveals that on March 16, 1998, when Lynn entered her original plea of not guilty on all charges, she signed an express waiver of “formal arraignment.” During the course of changing her plea to guilty of shoplifting, Lynn waived her right to trial by jury. Her amended plea of guilty to shoplifting ultimately was accepted by the trial court. Lynn also waived any right of indictment when she originally entered a plea of not guilty to all counts, without first hаving filed a written objection to proceeding under the accusation.
Crowder v. State,
2. Lynn contends the trial court erred in imposing felony punishment for her shoplifting conviction because she had only two, rather *602 than three, prior shoplifting сonvictions that could be considered to enhance punishment under OCGA § 16-8-14 (b) (1) (C). She argues that in addition to prior misdemeanor shoplifting convictions, only those prior felony shoplifting convictions ocсurring after April 29, 1997, the effective date of the 1997 amendments to OCGA § 16-8-14 (b) (1), would support an increase of her punishment. For the following reasons, we find her contention to be without merit.
The current shoplifting offense was сommitted on December 11, 1997. Prior to the commission of this offense, Lynn had been convicted, inter alia, of committing: (1) a misdemeanor shoplifting offense on April 13, 1997; (2) felony and misdemeanor shoplifting offenses in January 1997 and June 1997, respectively; and (3) a felony shoplifting offense in May 1991 (first offender sentence).
Before OCGA § 16-8-14 (b) (1) was amended in 1997, only prior
misdemeanor
shoplifting convictions could be considered in seeking felony fоr a fourth shoplifting conviction. See generally
Fuller v. State,
Lynn argues that the 1997 amendment must be construed as prospective in application. She also argues that OCGA § 16-8-14 (b) (1) (C) is аmbiguous as to whether a felony shoplifting conviction, occurring prior to April 29, 1997, can be considered in determining whether a defendant has committed felony shoplifting, and that this ambiguity must be resolved in her favоr. Lynn has failed to assert any constitutional provision which, under the facts of this case, requires this Court to apply OCGA § 16-8-14 (b) (1) (C) prospectively, and we are aware of none. See
Johnson v. State,
“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all timеs the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). The most important principle of statutory construction is to discern the intent of the rule. See
In the Matter of Dale A. Allison, Jr.,
3. Lynn claims that the trial court erred in sentencing her as a repeat offender under OCGA § 17-10-7 when the same felony shoplifting conviction was used to impose felony punishment under OCGA § 16-8-14 (b) (1) (C). Because her prior shoplifting convictions rendered the instant shoplifting charge a felony, rather than served merely as a vehicle for sentence enhancement, we disagree.
During the sentencing hearing, the state introduced evidence of Lynn’s three prior convictions for shoplifting. Prior to trial, the state served Lynn with notice of intent that it would prеsent evidence of each of these three prior convictions for purposes of sentencing under OCGA §§ 16-8-14 (b) (1) (C) and 17-10-7; these three convictions were identified by their case number. One of the prior shоplifting convictions so identified was also alleged in the indictment as the sole felony conviction supporting the habitual felon charge. The shoplifting count in the information merely alleged that Lynn hаd three prior theft by shoplifting convictions. Lynn was convicted of both felony shoplifting under OCGA § 16-8-14 (b) (1) (C) and habitual felon under OCGA § 17-10-7.
Lynn contends that her prior shoplifting convictions were improperly considered by the triаl court to enhance her punishment. The record does not support her contention. Because she had three prior shoplifting offenses, Lynn’s fourth shoplifting offense was a felony by statutory definitiоn. The maximum permissible punishment for felony shoplifting, under OCGA § 16-8-14 (b) (1) (C), is imprisonment for not less than one nor more than ten years; and the first year of such sentence shall not be suspended, probated, deferred, or withhеld. Lynn was sentenced, inter alia, to imprisonment for ten years with the last five years probated. The punishment Lynn received was within the range of permissible maximum punishment authorized for felony shoplifting. Thus, Lynn’s exposure to more severe punishment resulted from the felony status of her shoplifting offense, not from the introduction of her prior convictions for sentence enhancement purposes.
Lynn’s reliance on
King v. State,
“ ‘[T]here is a presumption that [a] sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.’ ”
Williams v. State,
Judgment affirmed.