JOHNSON v. STATE

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Court of Appeals of Georgia.

JOHNSON v. The STATE.

No. A97A0860.

Decided: November 17, 1997

Randolph E. Wynn, Warner Robins, for appellant. Charles H. Weston, District Attorney, Laura D. Hogue, Graham A. Thorpe, Assistant District Attorneys, for appellee.

 Defendant Howard Johnson appeals his sentence of life without parole under OCGA § 17-10-7(b)(2), arguing that the application of this Code section in his case violates the prohibition against ex post facto application of statutes.   The offense for which he is being sentenced occurred after the effective date of this Code section, however.   Accordingly, ex post facto considerations do not prohibit application of OCGA § 17-10-7(b)(2), and we affirm defendant's sentence.

In 1986, defendant was convicted of armed robbery (seven counts).   Effective January 1, 1995, OCGA § 17-10-7, a recidivist statute, was amended to provide that anyone convicted of a serious violent felony who has previously been convicted of a serious violent felony must be sentenced to life without parole if he is not sentenced to death.   In October 1995, the court found defendant guilty of committing an armed robbery on April 11, 1995, and sentenced him to life without parole.

 Defendant contends his sentence violates the prohibition against ex post facto application of statutes because his previous conviction of a serious violent felony occurred before January 1, 1995, the effective date of the amendment.   The Supreme Court of Georgia has held, however, that the prohibition against ex post facto laws is not implicated in this type of situation because the defendant is being punished for the new crime only.   See Fowler v. State, 235 Ga. 535, 221 S.E.2d 9 (1975).   Defendants sentenced under recidivist statutes “ ‘are not punished a second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.’  [Cit.]” Id. at 536, 221 S.E.2d 9.   Thus, even if the previous offense occurred before the effective date of the statute, application of the statute is not ex post facto if the offense for which the defendant is being sentenced occurred after the effective date.  Id. See also Landers v. State, 250 Ga. 501, 504(4), 299 S.E.2d 707 (1983);  Solomon v. State, 247 Ga. 27, 32(7), 277 S.E.2d 1 (1981);  Lloyd v. State, 226 Ga.App. 401, 403(5), 487 S.E.2d 44 (1997);  Cofer v. Crowell, 146 Ga.App. 639, 247 S.E.2d 152 (1978).

Judgment affirmed.

POPE, Presiding Judge.

BLACKBURN, J., and HAROLD R. BANKE, Senior Appellate Judge, concur.