Petition for Writ of Certiorari — Wills v. Georgia

83 - 1 563 0 on st ¥ Us.

MAR 19 1984

No. 83-

ALEXANDER L. STEVAS,

CLERK

_— AAA

In The

Supreme <curt of the United States

October Term, 1983

FRANK WILLS, Petitioner

Vv.

STATE OF GEORGIA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF GEORGIA

ALBERT M. PEARSON, III

University of Georgia

School of Law

Athens, Georgia 39602

(404) 542-7668

Counsel of Recorda for Petiticner

March, 1984

6 pp

No. 83-

In The

Supreme Court of the United States

October Term, 1983

FRANK WILLS, Petitioner

Vv.

STATE OF GEORGIA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF GEORGIA

ALBERT M. PEARSON, III

University of Georgia

School of Law

Athens, Georgia 30602

(404) 542-7668

Counsel of Record for Petitioner

March, 1984

aac e

QUESTIONS PRESENTED

I. WHETHER THE TRIAL JUDGE'S EXPLICIT RE-

LIANCE UPON A PRIOR UNCOUNSELED MISDEMEANOR

CONVICTION IN IMPOSING A MAXIMUM SENTENCE ON

PETITIONER IS INCOMPATIBLE WITH THE RESULT

IN BALDASAR V. ILLINOIS, 446 U.S. 222 (1980)?

II. WHETHER THE PROCEDURAL POSTURE OF THE

CASE AT TRIAL AND BEFORE THE COURT OF AP-

PEALS SHOULD PRECLUDE A GRANT OF THE

WRIT OF CERTIORARI?

TABLE OF CONTENTS

Gpinions Below . 2+ « «+ + e+ se 8

hp ge Pe LE” ee a a a

Statement GT CABG . «+e s 6

Reason For Granting Writ of

COEGAIeeers. «2 «+ © © oe 8 8

Geese ¢. « «<< s © se o- 8

APPENDIX

Supreme Court of Georgia; order of

January 19, 1984 denying writ

Ok GORGAGREESL 24 & 5. «2 «2-4 8

Court of Appeals of Georgia;

order of December 12, 1983

denying petition for re-

BOREAS. 6.5066 cede 0 e..4 0-00

Court of Appeals of Georgia;

opinion of November 23, 1983

in Wills v. State (not yet of-

SiGAR4aAy Beer eeel. » 1 «2-0 » «

State Court of Richmond County,

Georgia; order of May 1l, 1983

denying petitioner's Motion

and Amended Motion for New

See ko ee 6 ee ee ee

Excerpt from petitioner's Amended

Motion for New Trial; filed in

State Court of Richmond County,

ae ee

ii

32

A-12

A-14

Judgment of Conviction for Shop-

lifting; Recorder's Court,

City of North Augusta, South

Carolina; September 17, 1979

(single document displayed

On consecutive pages) ....

Excerpt from transcript be-

low of petitioner's sentencing

on February 15, 1983 for theft

by taking (shoplifting) in

the State Court of Richmond

County, G®:orgia .. «++. e«

Official Code of Georgia, sec-

tions 16-8-2 and -12; theft

by taking provision and

penalty applicable to that

OffOnSe «. © es se ts sees e se

Code of Laws of South Carolina

1976, section 13-13-110; shop-

lifting provision in effect at

time of petitioner's September

17, 1979 shoplifting conviction

- « A-17,18

- e A-19

o « An-4l

in North Augusta, South Carolina . A-22

iii

TABLE OF AUTHORITIES

Argersinger v. Hamlin,

€07 U.6. 25 (1972) . 2 2 « « «

Baldasar v. Illinois,

a aa. meee Lee) 6 lt elk le

Burgett v. Texas,

wee UeB. BUe (4967) « «© 2 6 ss

Chambers v. Mississippi,

410 U.S. 284, 290 (1973) .

Creswill v. Grand Lodge, Knights

of Pythias of Georgia,

Bao Ucts 250 (29L2Z) « 0 « o

Gideon v. Wainwright,

374 U.S. 332 (1963) .. «

Hathan v. Lovorn,

457 U.S. 255, 261-65 (1982)

Hollingsworth v. State,

410 So.2d 133 (Ala. 1981) .

LaBarre v. Daneault,

461 A.2d 89 (N.H. 1983) ....

Lewis v. United States,

a cmc Cee... os ee ee

Loper v. Beto,

405 U.S. 473 (1972) . . « «© « «

iv

31

16,21

8,9

McClure v. Commonwealth,

283 S.E.2d 224 (Va. 1981) ....

McKenney v. State,

388 So.2d 1232 (Fla. 1980)

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 457-58 (1958) .. .

People v. Hampton,

619 P.2d 48 (Colo. 1980)

People v. McCarty,

101 Ill. App.3d 355, 429 N.E.2d

Bgea (4984) «© © © © © 6 © © 6

People v. Rocha,

o P.2d (Colo. 1982)

Schindler v. Clerk of Circuit

Court,

715 F.2d 341, 344-46 (7th Cir.

1983) . os ae ee ee

Scott v. Illinois,

Daw Wate wee: taeee) se 6 ee « 8 @

Smith v. State,

248 Ga. 828, 286 S.E.2d 709

(1982) 7 . . 7 . - . . 7 . . >

State v. Boos,

232 Kan. 864, 659 P.2d 224

(1983) ° . ° * . . . + os - e ° .

State ex rel. Bishop v. Blackburn,

384 So.2d 406, 408 (1980) ....

State ex rel. Alton v. Conklin,

421 So. 1108 (Fla. App. 1982)

State v. Gerwin,

69 Ohio St.2d 488, 432 N.E.2d

828 (1982) e ° . - 7 . ° : .

Vv

17

30

16

17

16

18

8,13

20

20

22

17

20

State v. Grenvik,

291 Or. 99, 628 P.2d 1195

(1981) (In banc) © + 2 6 * . . 7 . 18,22

State v. Harder,

650 P.2d 724 (Kan. App. 1982) ... 17,21

State v. Hinson,

164 Ga. App. 66, 296 S.E.2d

TE. 5 « «6 6 «@ © «© «© « « 26

State v. Hooker,

131 Ariz. 480, 642 P.2d 477 (1982). 20

State v. Levey,

445 A.2d 589 TCE. « 5 «© «© « @h

State v. Nordstrom,

Dan memeee wen (Minn. 1983) .... 17,21

State v. Novak,

107 Wis.2d 31, 318 N.W.2d 364

(1982) Dies 6 « «© « « « « 8

State v. Orsini,

187 Conn. 264, 445 A.2d 887

DTT? 5 4 « «© «© «© «© « «© «© « 2a

State v. Smith,

213 Neb. 446, 329 N.W.2d 564

~~~. G 6 6 «© « © « « « « 18,21

State v. Sweeney,

190 N.J. Super. 516 (N.J. App.

TITS) 6 6 6 © « « « « « 20

State v. Ulibarri,

96 N.M. 511, 632 P.2d 746 (1981) . 18

vi

State v. Vainio,

oe ‘moe mee teem, 2963) « « « 0 0 eo Oe

State v. Wiggins,

399 So.2d 206 (La. 1981) ..... IL7

Street v. New York,

ape UsBe SFO CAPO8) «© «© © we eo oe ew elCUe

Thompson v. Estelle,

S42 F.20 Bee (oem Cir. 1961) 1. »- is

Tucker v. United States,

S66 Use GOS CARTES 6 4 8-3 6 & @ & PeRe

14,15

United States v. Rice,

S74 V.aa Soo (Asem Cir. 1962) ... s&s

United States v. Robles-Sandoval,

637 F.2d 692, 693 n. 1 (9th

ee 5 oe 1981) ” ° * e e * 2 . e . e . 18

Vachon v. New Hampshire,

See Gea GEO teeter +6 2 oe we eo eo | OO

Wade v. State,

Zae Gh« Bobs 2860 8.8.26 274 (3972). 26

Ward v. Board of County Commissioners

of Love County,

253 U.S. a? (1920) ~ . e e e : e e 31

Williams v. Georgia,

349 U.S. S75, 383 (1955) . 2. «© «© « 30

Wilson v. Estelle,

625 F.2d 1158 (5th Cir. 1980),

cert. denied, 451 U.S. 912 (1981) . 19

vil

Wright v. Georgia,

373 U.S. 284, 291 (1983)

viii

No. 83-

In The

Supreme Court of the United States

October Term, 1983

FRANK WILLS, Petitioner

Vv.

STATE OF GEORGIA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF GEORGIA

Frank Wills respectively petitions

this Court to issue a writ of certiorari to

review the judgment of the Court of Appeals

of the State of Georgia entered November 23,

1983. (A-3 ) This petition comes after

the Supreme Court of Georgia denied certio-

rari to the petitioner on January 19, 1984.

(A-1 )

arr ae ee eae eis ad RR —— aa SE EO OOOOOOlllOliCi =e

OPINION BELOW

The opinion of the Court of Appeals of

Georgia (A-3) is not officially reported

at this time.

JURISDICTION

The judgment of the Court of Appeals

of the State of Georgia was entered on

November 23, 1983. A timely petition

for rehearing was denied on December 12,

1983. (A-2) Thereafter, on December

30, 1983, a timely application for a writ

of certiorari was filed with the Supreme

Court of Georgia. On January 19, 1984 the

Supreme Court of Georgia denied Mr. Wills’

request for certiorari. (A-l) Jurisdic-

tion of this Court to review the judgment

of the Court of Appeals of the State of

Georgia is conferred by 28 U.S.C. §1257(3).

STATEMENT OF CASE

Petitioner was convicted of theft by

taking (sho, lifting) in a jury trial on

February 14 and 15, 1983 in the State Court

of Richmond County, Georgia. The item taken

was a pair of tennis shoes valued at

$16.79. At sentencing the trial judge asked

whether the petitioner had "any previous

record." (A-19) The prosecutor responded

by presenting "for sentencing purposes, a

certified copy of [a] conviction from the

North Augusta City Recorder's Court...

for the offense of shoplifting." (A-19)_

The date of this prior conviction was

September 17, 1979. (A-17,18)

For some reason, the trial judge did

not make the tendered prior conviction a

part of the record at that point. In any

event, the trial judge specifically relied

on the prior conviction to impose a sentence

on petitioner of twelve months (A-20), the

maximum penalty possible for the offense

- 3-

which is a misdemeanor under Georgia law.

O.C.G.A. §§16-8-2 and 16-8-12. (A-21)

At sentencing, petitioner's trial

counsel did not object to the trial judge's

consideration of the North Augusta shop-

lifting conviction. Trial counsel, however,

filed a timely motion and amended motion for

a new trial. (A-14,15,16) One contention

in that motion was that petitioner's sen-

tence was illegal because the North Augusta

shoplifting conviction was uncounselled and

could not be used to enhance petitioner's

sentence. (A-14,15)

Attached to this motion as Exhibit "B"

was a copy of the docket entry for pe-

titioner's North Augusta shoplifting con-

viction. (A-17,18) It reflected the fol-

lowing information:

(1) the charge of shoplift-

ing;

(2) petitioner's plea of

nolo contendere;

(3) the court's finding of

guilt;

(4) a sentence of 30 days in

jail or payment of a

$108.25 fine. (A-22)

In the space for the name of the defendant's

attorney, there was no entry. The docket

entry was also silent as to whether the de-

fendant waived his right to the presence of

counsel or any other trial rights that he

possessed.

The trial judge set the motion for

hearing and argument on April 21, 1983. No

transcript was made of that proceeding.

On May 21, 1983, the trial judge denied

petitioner's motion and amended motion for

new trial. (A-12) Encompassed within this

Order was a rejection of petitioner's chal-

lenge to the legality of his twelve month

sentence.

REASONS FOR GRANTING WRIT OF CERTIVCRARI

I. INTRODUCTION

The ultimate question presented by

this petition requires consideration of the

scope of Baldasar v. Illinois, 446 U.S. 222

(1980), a decision regarded by many lower

courts as having no clear rationale. Can

a trial judge explicitly consider and rely

upon an uncounseled prior misdemeanor con-

viction to increase a sentence of confine-

ment in a subsequent criminal case when

the uncounseled prior misdemeanor convic-

tion did not result in incarceration? To

reach this question, however, the Court

must first consider three preliminary

issues: (1) whether the burden was on the

state initially to establish the constitu-

tional propriety of reliance upon the pe-

titioner's prior shoplifting conviction in

sentencing?; (2) if so, whether the stute

satisfied its burden by tendering a certi-

6 =

fied copy of a prior judgment of conviction

which was silent concerning whether the

petitioner was represented by counsel?;

(3) whether the Court of Appeals denied

petitioner due process and equal protection

when it refusel to consider petitioner's

challeng= to the legality of his sentence?

II. THE TRIAL JUDGE'S EXPLICIT RELIANCE

UPON A PRIOR UNCOUNSELED MISDEMEANOR

CONVICTION IN IMPOSING A MAXIMUM

SENTENCE ON PETITIONER IS INCOMPATIB™E

WITH THE RESULT IN BALDASAR V. ILLINOIS,

446 U.o. 222 (1980) AND PRESENTS AN

OCCASION FOR THIS COURT TO CLARIFY

THE RATIONALE OF THAT DECISION.

After Gideon v. Wainwright, 372 U.S.

335 (1963), the Supreme Court addressed a

series of ques: .ons concerning the secondary

use of prior uncounseled felony convictions.

In Burgett v. Texas, 389 U.S. 109 (1967),

the Court held that a conviction which was

invalid under Gideon could not be used for

enhancement purposes under the Texas re-

cidivist statute. In Tucker v. United

States, 404 U.S. 443 (1972), the Court held

- 7J7-

ee ee ee ee ee ee eS

that such a conviction could not even be

considered by a court in sentencing a de-

fendant after a later conviction. Finally,

in Loper v. Beto, 405 U.S. 473 (1972), the

Court ruled that a conviction obtained in

viclation of Gideon could not be used for

the purpose of impeaching the general credi-

bility of the defendant. After Argersinger

v. Hamlin, 407 U.S. 25 (1972), the rationale

of these post-Gideon decisions necessitated

Similar restrictions on the use of prior

uncounseled misdemeanor convictions at least

in those cases in which defendant received

a sentence of imprisonment.

In Scott v. Illinois, 440 U.S. 367

(1979), however, the Supreme Court brought

a halt to the expansion of the Sixth Amend-

ment right to counsel. It held that as

long as a defendant was not sentenced to a

term of imprisonment, an uncounseled con-

viction did not violate the sixth amendment.

But Scott did not settle the point whether

—S_ fe Si a i ae a Tl Tel ceTClC eel ele, lel

convictions that were valid under its ra-

tionale were valid for other purposes such

as sentence enhancement in a later case in-

volving a term of imprisonment.

Two decisions since Scott have con-

sidered the secondary use of uncounseled

prior convictions. First, in Lewis v.

United States, 445 U.S. 55 (1980), the

Court upheld a firearms possession convic-

tion under 18 U.S.C. 1202(a)(1). An ele-

ment of the government's proof under the

statute was that the defendant possessed a

firearm after having been previously con-

victed of a felony. Without disclaiming

the reasoning or results in its prior de-

cisions concerning the use of uncounseled

prior felony convictions, Loper v. Beto,

405 U.S. 473 (1972); United States v.

Tucker, 404 U.S. 443 (1972); Burgett v.

Texas, 389 U.S. 109 (1967), the Court rea-

soned that Congress had not intended to

make criminal liability under section 1202

dependent upon the underlying validity of

the prior felony conviction. Rather, a

prior felony conviction under section 1202

was seen as a rational indicator of a per-

son's dangerousness and thus justified the

general firearms ban applicable to all con-

victed felons. Although the Court's ruling

in Lewis rested entirely on statutory in-

terpretation, the tone of the opinion pre-

saged disenchantment with Loper, Tucker,

and Burgett. After Lewis, one could plausi-

bly ask why Congress could take the view

that it did of prior felony convictions

under section 1202, yet trial courts could

not have the same latitude or discretion in

sentencing?

Less than two months after Lewis, the

Supreme Court addressed the question of

permissible uses of uncounseled prior mis-

demeanor convictions for which no prison

term was imposed. In Baldasar v. Illinois,

446 U.S. 222 (1980), Baldasar was charged

» 10 -

with the November 1975 theft of property

(a showerhead) worth less than $150. This

was the second such charge against Baldasar

within the year. Under Illinois law, the

first offense for theft of this type was

treated as a misdemeanor; the second as a

felony. Baldasar was convicted. At sen-

tencing, the prosecutor asked that Baldasar's

second theft conviction be treated as a

felony. Over the protest of Baldasar's at-

torney, who pointed out that her client had

been unrepresented in the first case, the

trial judge sentenced the defendant as a

felon, giving him one to three years in

prison. The Illinois Appellate Court af-

firmed on the theory that even though the

defendant was unrepresented in the first

theft trial, Baldasar's prison term was at-

tributable entirely to the second theft con-

viction.

The Supreme Court reversed in a de-

cision that really has no majority ra-

- il -

tionale. Four justices in Baldasar (Brennan,

Marshall, Stevens and Stewart) were of the

Opinion that had it not been for the pre-

vious theft conviction in which Baldasar

was unrepresented, he would not have been

treated as a felon and received the one to

three year sentence that he did. In their

view, an uncounseled conviction under the

rationale of Scott v. Illinois was valid

only for limited purposes. Id. at 224-229.

Justice Marshall's concurring opinion sum-

marized this point clearly: "[A] conviction

which is invalid for the purposes of impos-

ing a sentence of imprisonment for the of-

fense itself remains invalid for purposes of

increasing a term of imprisonment for a

subsequent conviction under a repeat-

offender statute." Id. at 228 (emphasis

added).

Justice Blackmun provided the fifth

and decisive veto in favor of reversal in

Baldasar. He restated the position he took

- a7 @

in his Scott dissent that the right to coun-

sel ought to attach whenever a defendant is

prosecuted for an offense punishable by

more than six months' imprisonment. Scott

v. Illinois, 440 U.S. 367, 389-90 (1979).

Since Baldasar's first theft offense carried

a possible penalty of one year, Justice

Blackmun found that Baldasar was in fact

entitled to counsel in that trial and

therefore no collateral use of his wuicoun-

seled conviction was permissible. Id. at

229-231.

Justice Powell's dissent questioned

both the logic and the policy underlying

the result reached by the Court. He be-

lieved that a conviction which is valid

under Scott should be regarded as valid for

all purposes, most particularly sentence en-

hancement. In his view, the Court's prior

cases reflect the premise that uncounseled

felony convictions are void because of their

unreliability. Justice Powell did not

o 13 «

(os eg

agree that this premise of unreliability

carried over to uncounseled misdemeanor

convictions. Id. at 233-34, n. 2. Finally,

he perceived a "violent" conflict between

the Court's reasoning in Lewis and the re-

sult reached in Baldasar. How could an

uncounseled -- and therefore invalid --

felony be relied upon to sustain the fire-

arms conviction in Lewis and yet in fixing

Baldasar's sentence no consideration could

be given to his prior uncounseled misdemeanor

conviction which was valid as imposed?

Baldasar reflects an extension of the

analysis of Burgett v. Texas, 389 U.S. 109

(1967) to uncounseled misdemeanor convic-

tions that are constitutionally valid under

Scott. The present petition in effect raises

the question whether the rationale of another

post-Gideon case, United States v. Tucker,

404 U.S. 443 (1972) will similarly be ex-

tended to Scott convictions. The trial

judge in this case explicitly relied on

» 14 «

the North Augusta conviction to impose on the

petitioner the maximum penalty possible under

Georgia law of twelve months. The certi-

fied copy of the North Augusta conviction

was blank in the space where the name of

defense counsel was supposed to appear.

In addition, there is no entry indicating

waiver of the right to counsel. Regardless

of whether the trial judge in the instant

case knew these details when he sentenced

petitioner to twelve months, he was made

aware of them as a result of a timely post-

trial motion in which the legality of pe-

titioner's sentence was challenged.

The trial judge's sentencing here

perfectly parallels the constitutionally

invalid action of the trial judge in United

States v. Tucker, 404 U.S. 443 (1972) ex-

cept for one particular: the petitioner did

not serve jail time for the North Augusta

shoplifting conviction. Although Baldasar

involved a statutorily mandated recharacteri-

- 15 -

zation of a second theft offense from mis-

demeanor to felony with an accompanying en-

hancement of penalty, it could be extended

to encompass petitioner's case as well.

Whether this Court would take such a step,

however, depends upon reaching agreement

about the underlying premise of Baldasar

or perhaps reconsidering the locus of the

"bright line" in the Scott decision. The

absence of consensus has caused considerable

difficulty in the lower federal and state

courts.

Many state courts have taken the result

in Baldasar at face value and have ruled

that a subsequent criminal penalty cannot

be enhanced based on a prior uncounseled

misdemeanor conviction which did not re-

sult in imprisonment. Hollingsworth v.

State, 410 So.2d 133 (Ala. 1981) (Baldasar

applied in probation revocation proceeding) ;

People v. Rocha, 659 P.2d 569 (Colo. 1982)

reversed on other grounds, 669 P.2d 1366

- 16 -

(1983) (habitual traffic offender case);

People v. Hampton, 619 P.2d 48 (Colo. 1980)

(habitual traffic offender case); State ex

rel. Alton v. Conklin, 421 So. 1108 (Fla.

App. 1982) (Baldasar applied in proceeding

to determine whether juvenile would be

tried as adult); McKenney v. State, 388

So.2d 1232 (Fla. 1980) (Baldasar recognized

as applicable to habitual misdemeanant

charge; waiver of counsel found in prior

proceeding); People v. McCarty, 101 Ill.

App.3d 355, 427 N.E.2d 1382 (1981) (Baldasar

applied in probation revocation proceeding) ;

State v. Harder, 650 P.2d 724 (Kan. App.

1982) (Baldasar recognized as applicable;

but waiver of counsel found in prior mis-

demeanor conviction); State v. Wiggins,

399 So.2d 206 (La. 1981) (cites Baldasar

favorably though Louisiana followed same

rule since 1974); State v. Nordstrom, 331

N.W.2d 901 (Minn. 1983) (Baldasar applied in

case where enhanced punishment was fine not

- 17 -

a term of imprisonment); State v. Smith, 213

Neb. 446, 329 N.W.2d 564 (1983) (Baldasar

applied to deny enchancement of sentence for

traffic offense); State v. Ulibarri, 96 N.M.

followed

511, 632 P.2d 746 (1981) (Baldasar/in driving

under influence case); State v. Grenvik, 291

Or. 99, 628 P.2d 1195 (1981) (In banc)

(Baldésar following in driving under influ-

ence case to deny enhancement).

At the same time, perhaps an equal

number of state courts and several federal

circuit courts have circumvented the

Baldasar decision or appear to have ignored

it. A number of these decisions have

pointed out the Jack of any controlling ra-

tionale in Baldasar as a reason for not fol-

lowing it. See, e.g., Schindler v. Clerk

of Circuit Court, 715 F.2d 341, 344-46 (7th

Cir. 1983); United States v. Robles-Sandoval,

637 F.2d 692, 693 n. 1 (9th Cir. 1981);

State v. Novak, 107 Wis.2d 3l, 318 N.W.2d

364 (1982). The fifth circuit has apparently

#» 19 -

elected to adhere to its pre-Baldasar posi-

tion that uncounseled prior convictions

which do not result in imprisonment are

valid for all purposes. Wilson v. Estelle,

625 F.2d 1158 (5th Cir. 1980), cert. denied,

451 U.S. 912 (1981) (dismissed Baldasar

with a "cf." footnote reference). See

also, Thompson v. Estelle, 642 F.2d 996

(Sth Cir. 1981) (cites Wilson but does not

mention Baldasar). In the only eleventh

circuit decision to discuss Baldasar, the

court avoided the issue in a probation revo-

cation proceeding. It held that, apart

from the uncounseled misdemeanor, there

was ample independent evidence in the

record to justify revocation. United States

v. Rice, 671 F.2d 455 (llth Cir. 1982).

In a different vein, a number of lower

courts have pointed out the conflict be-

tween the Lewis and Baldasar decisions and

they have relied on Lewis as a means of

avoiding the ramifications of Baldasar.

» 19 «

See, Smith v. State, 248 Ga. 828, 286 S.E.2d

709 (1982); State v. Vainio, 466 A.2d 471

(Me. 1983); McClure v. Commonwealth, 283

S.E.2d 224 (Va. 1981). Other courts have

avoided the thrust of Baldasar through un-

, 1

if

questionably legitimate distinctions. These

distinctions have turned on the civil

character of the later proceeding, State v.

Boos, 232 Kan. 864, 659 P.2d 224 (1983)

(later proceeding civil in nature; Baldasar

does not preclude consideration of uncoun-

seled convictions in determining habitual

traffic violator status); LaBarre v.

Daneault, 461 A.2d 89 (N.H. 1983) (similar),

as well as the fact that even if the later

proceeding was criminal, the defendant did

not receive a term of imprisonment. State

v. Hoc*er, 131 Ariz. 480, 642 P.2d 477

(1982); State v. Sweeney, 190 N.J. Super.

516 (N.J. App. Div. 1983); State v. Gerwin,

69 Ohio St.2d 488, 432 N.E.2d 828 (1982).

Finally, several decisions have found

«= 20 «

Baldasar inapplicable because counsel was

waived in the earlier criminal proceeding.

See, e.g., State v. Harder, 650 P.2d 724

(Kan. App. 1982); State v. Levey, 445 A.2d

1089 (N.H. 1982).

Only one other wade bears on the

propriety of granting certiorari in this

case. It has to do with burden of proof

allocation. The state in this case asked

the trial judge to consider a prior convic-

tion which on its face indicated that pe-

titioner was not represented at his shop-

lifting trial in North Augusta. Some

jurisdictions place the burden on the state

to establish the validity of any prior con-

victions if they are offered for considera-

tion at sentencing. Hollingsworth v. State,

410 So.2d 133 (Ala. 1981); State v. Orsini,

187 Conn. 264, 445 A.2d 887 (1982); State

v. Nordstrom, 331 N.W.2d 901 (Minn. 1983);

State v. Smith, 213 Neb. 446, 329 N.W.2d

564 (1983). The decisions of this Court

» 23 «

also appear to place the burden of sanitiz-

ing prior convictions on the state. See,

e.g., Burgett v. Texas, 389 J.S. 109 (1967).

Under this authority the state in this

case could not have met its burden of proof

Since it never, as far as the record re-

flects, established that petitioner had

representation at his North Augusta shop-

lifting trial. Indeed, the oniy document

in the record concerning that conviction is

blank in the space provided for the name

of defense counsel. On its face, there-

fore, it is constitutionally deficient and

should not have been considered by the

trial judge. See, State ex rel. Bishop v.

Blackburn, 384 So.2d 406, 408 (1980)

(minutes of prior misdemeanor conviction

indicated "waiver of counsel" but did not

establish factual basis; conviction could

not be used); State v. Grenvik, 291 Or. 99,

628 P.2d 1195 (1981) (abstract of prior

traffic conviction blank in space for name

«= 29 «

of defense counsel; held no waiver of coun-

sel in face of the omission from record).

Petitioner contends that Lewis and

Baldasar have produced enough difficulty in

the lower courts to justify intervention by

this Court. What is desperately needed in

this area is the "bright line" that members

of this Court have so often referred to in

their opinions. As the law stands now,

lower courts cannot be certain about how

to consider prior uncounseled misdemeanor

convictions which do not result in imprison-

ment. This case provides an opportunity

for a clarifying ruling. The procedural

considerations in the next section do not

suggest otherwise.

III. THE PROCEDURAL POSTURE OF THE CASE AT

TRIAL AND BEFORE THE COURT OF APPEALS

SHOULD NOT PRECLUDE A GRANT OF THE

WRIT OF CERTIORARI.

A. Procedural Default

At sentencing, counsel for petitioner

- 23 «

? ~~

did not object to the trial judge's reliance

on the North Augusta shoplifting conviction.

(A-18,19) Under Georgia law, as will be

shown, trial courts have broad authority to

amend or correct illegal sentences. In

this case, petitioner filed an amended mo-

tion for a new trial which contained, among

other points, a request for a correction of

sentence because the North Augusta convic-

tion was uncounseled. (A-14,15) The sen-

tencing question was brought to the atten-

tion of the trial judge in a timely manner.

Furthermore, after conducting a hearing and

considering argument, the trial judge re-

_ jected petitioner's motion in an order

entered May 16, 1983. (A-12) Petitioner's

notice of appeal to the Court of Appeals of

Georgia followed on June 14, 1983.

Despite the fact that one of petitioner's

enumerations of error was the denial of the

amended motion for new trial, the Court of

Appeals refused to consider the challenge

- 24 -

to the legality of the sentence. (A-9,10)

Incomprehensibly, the Court treated the use

of the North Augusta conviction as a question

of evidentiary admissibility, subject to the

contemporaneous objection rule. The confu-

sion underlying this approach is almost be-

yond clarification. Two propositions ap-

pear to underly the Court of Appeals ruling:

(1) since the North Augusta conviction was

not formally admitted into the record,

there was no harm to petitioner; and (2)

since petitioner's trial counsel failed to

object to the trial judge's actual con-

Sideration of the North Augusta conviction,

the procedural default forever barred a

challenge to the legality of the sentence.

The rationale of the contemporaneous

rule

objection/makes considerable sense when ap-

plied to the development of a trial record

before a case goes to the jury or to the

court for passing judgment on the issues.

But at sentencing -- which is not a part of

- 26 «

the same factfinding process as the trial

-- the rules of evidence are relaxed.

Trial judges in Georgia routinely rely on

information in sentencing which would be

inadmissible at trial. It is sufficient

procedurally for a criminal defendant to

bring a sentencing error to the trial judge's

attention at a point when jurisdiction to

correct a mistake still exists. Under sec-

tion 17-10-11, Official Code of Georgia, the

trial judge does not lose this authority

until after the expiration of the term of

court at which the sentence was imposed.

See Wade v. State, 231 Ga. 131, 200 S.E.2d

271 (1972); State v. Hinson, 164 Ga. App.

66, 296 S.E.2d 386 (1982) (both decided

under predecessor to §17-10-1; no difference

in language). Therefore, even if an objec-

tion is not made at or before the moment of

sentencing, the trial judge can subsequently

considerly the objection under §17-10-1 and,

it should be stressed, the trial judge did

=. 96 -

so in petitioner's case below.

Perhaps in its emphasis on the failure

to object, the Court of Appeals had in mind

the predicate necessary under Georgia law to

impeach a witness at trial by proof of prior

criminal convictions. In that circumstance,

if the impeachment were allowed without

proper predicate, the defendant's failure

to object surely would be decisive against

post-trial or appellate review since the

defendant's only remedy would be a new trial.

A challenge to the legality of a sentence,

however, entails none of those consequences

and for that reason at sentencing the con-

temporaneous objection rule is simply beside

the point under Georgia law. How else can

One explain the liberal practice in Georgia

permitting challenges to sentence when

made curing the same term of court at which

the original sentence was imposed?

Contrary to what the Court of Appeals

appears to have assumed, the illegality of

= 27 «

.

petitioner's sentence under Baldasar has

nothing to do with the admissibility into

evidence of the North Augusta conviction.

As a matter of federal constitutional law,

if petitioner's sentence is invalid, it is

because of the trial judge's explicit con-

sideration of information that should not

have been taken into account at all. The

trial judge clearly gave petitioner's North

Augusta conviction weight because he stated

so on the record and then imposed the maxi-

mum sentence of twelve months.

As this Court observed in Street v.

New York, 394 U.S. 576 (1969):

"The issue whether a

federal question was suf-

ficiently and properly

raised in the state courts

is itself a federal ques-

tion, as to which this

Court is not bound by the

decision of the state

courts." Id. at 583.

The words of petitioner's amended motion

for new trial c:n leave no doubt that the

o 36 «

challenge to the sentence was based on the

impropriety of the trial judge's reliance

on the uncounseled North Augusta misdemeanor

conviction. Petitioner's claim was surely

stated with more specificity than the first

amendment claim considered by this Court in

Street or the due process claim in Vachon

v. New Hampshire, 414 U.S. 478 (1974).

As to the timing of petitioner's chal-

lenge to the sentence, it came at a point

when the trial judge had authority not only

to correct any sentencing mistake but when

he could have ordered a new trial: Despite

that fact, the Court of Appeals treated pe-

titioner's Baldasar claim as barred for

failure to object to the use of the North

Augusta conviction when it was first brought

up at sentencing. This is a palpably in-

adequate ground for denying appellate re-

view to the petitioner. If a state court

applies its procedural rules to bar a claim

either for improper reasons or in circum-

«= 326 «

stances where the policy underlying a rule

has no relevance, this Court does not defer

to state law. Hathan v. Lovorn, 457 U.S.

255, 261-65 (1982); Chambers v. Mississippi,

410 U.S. 284, 290 (1973); Wright v. Georgia,

373 U.S. 284, 291 (1983); NAACP v. Alabama

ex rel. Patterson, 357 U.S. 449, 457-58

(1958); Williams v. Georgia, 349 U.S. 375,

383 (1955). Petitioner cannot fathom

whether any ulterior motive was behind the

Court of Appeals ruling, but given the fact

that the trial judge was able to consider

his sentencing challenge, petitioner asks

what substantial reason could the Court of

Appeals have had for invoking procedural de-

fault. The contemporaneous objection rule

was mentioned but petitioner has already

suggested why that justification is bizarre

to say the least. An

Out of an abundance of caution, per-

haps, the Court of Appeals added one final

reason for refusing to consider petitioner's

- 30 -

BEREEBREBEEBESESBS SSBB SB =

Baldasar claim. It asserted that the claim

was raised on appeal for the first time.

That assertion is flatly contradicted by the

record. The trial judge considered the

claim as a part of petitioner's amended mo-

tion for new trial and rejected it. Since

there is no fair and substantial support in

the record for the Court of Appeals' ruling,

this Court can disregard it. Ward v. Board

of County Commissioners of Love County, 253

U.S. 17 (1920); Creswill v. Grand Lodge,

Knights of Pythias of Georgia, 225 U.S. 246

(1912). Petitioner does not contest the

strong policy behind an appellate rule requir-

ing a question to be preserved at the trial

level in order to make it subject to appel-

late review. But, in this instance, neither

the letter nor the spirit behind that rule

came into play on petitioner's appeal and,

for that reason, the rule cannot be an

"adequate" state ground for the Court of

Appeals' decision below.

= 3] -

CONCLUSION

For the foregoing reasons, petitioner

respectfully requests that this Court grant

the petition for writ of certiorari on be-

half of Frank Wills.

Respectfully submitted,

WMS esegate

Albert M. Pearso

University of Georgia

School of Law

Athens, Georgia 30602

(404) 542-7668

CERTIFICATE OF SERVICE

As a member of the Bar of the United

States Supreme Court, I hereby certify that

on this 19th day of March, 1984, three

copies of the enclosed Petition for Certio-

rari were maiied, postage prepaid, to:

(1) Michael J. Bowers

Attorney General

State of Georgia

132 State Judicial Bldg.

40 Capitol Square, SW

Atlanta, GA 30334

- 32 «-

un

”

s

|

(2) Gayle B. Hamrick

Solicitor of State Court

Richmond County

217 City-County Municipal Bldg.

Augusta, GA 30911

I further certify that all parties required

to be served have been served.

LL pr. iss Lécase [b-

Albert M. Pearson,

University of Georgia

School of Law

Athens, Georgia 30602

(404) 542-7668

COUNSEL FOR PETITIONER

- 33-

A-1

CLERK'S OFFICE, SUPREME COURT OF GEORGIA

Atlanta 1/19/84

Case No. 40711, Wills v. The State

The Supreme Court today denied the writ of

certiorari in this case. All the justices

concur, except Smith, J., dissents.

Very truly yours,

S/

JOLINE B. WILLIAMS,

Clerk

COURT OF APPEALS

OF THE STATE OF GEORGIA

Atlanta 12/12/83

The Honorable Court of Appeals met pursuant

to adjournment. The following order was

passed:

67148 Frank Wills v. The State

Upon consideration of the motion for

a rehearing filed in this case, it is

ordered that it be hereby denied.

COURT OF APPEALS OF THE STATE OF GEORGIA

CLERK'S OFFICE, ATLANTA

I certify that the above is a true ex-

tract from the minutes of the Court of Ap-

peals of Georgia.

Witness my signature and the seal of

said court hereto affixed the day and year

last above written.

CLERK

A-3

OCTOBER, 1983

AFFIRMED

67148. WILLS V. THE STATE (Bi-206)

BIRDSONG, Judge.

Frank Wills was convicted of theft by

taking (shoplifting) and sentenced to serve

twelve months. He brings this appeal

enumerating five asserted errors.

The operative facts of this appeal

indicate that Wills entered a retail

establishment in Augusta with his teenage

son. Wills went to the shoe department

and made inquiry about a certain style

tennis shoe and its price. Subsequently,

Wills and his son began to exit the store,

passing by the cash register without making

payment for any purchases. A security em-

ployee was standing near the register

talking with another employee. It was her

responsibility to check all packages not

A-4

originating in the store in question.

Wills passed by the register and moved to

within a few feet of the exit doors when

the security employee called him back to

the checkout counter stating that she had

to check all packages. Though the testi-

mony is disputed, the jury was warranted

in believing that the employee looked into

a "tote" bag being carried by Wills and

found therein a pair of tennis shoes of

the type about which Wills had made an in-

quiry. The shoes were the merchandise of

the store and still contained intact a tag

that would have been separated had a proper

purchase been made. When confronted with

the shoes, Wills asked how much he had to

pay. Initially the store manager was going

to aliow Wills to pay for the shoes but

upon learing of his conduct in the store,

Wills was detained and subsequently ar-

rested. Held:

A=-5

l. During the presentation of the

state's evidence, the prosecutor inquired

why the store manager offered Wills the

opportunity to purchase the shoes. This

question was objected to by the defense as

tending to bolster the testimony of a

state's witness. In overruling the objec-

tion, the trial court stated to the defen-

dant's counsel that there was no purpose in

keeping the reason a secret or for not

letting it in so that the jury could weigh

it in their deliberations. After further

argument, the trial court sustained the

objection and told the jury the question

and answer were not to be considered by

them and expressly charged the jury that

it was not to place any credence to the

question because of the comments made by

the court to counsel in the discussion of

the objection.

A-6

It is clear that the trial court merely

explained his reasoning to counsel for the

court's ruling. Remarks of a judge as-

Signing a reason for his ruling are neither

an expression of opinion nor a comment on

the evidence. Johnson v. State, 246 Ga.

126, 128 (V) (269 SE2d 18). Moreover, the

trial court sustained the objection, re-

moved the consideration of the subject

from the jury and gave an appropriate charge

thereon. Under such circumstances, it is

not error for the trial court to refuse to

grant a mistrial. Jones v. State, 139 Ga.

App. 643, 644 (229 SE2d 121). There is no

merit in the first enumeration of error.

2. Likewise during its case in chief,

the state asked the store manager how many

cases of shoplifting he had experienced.

This question was objected to on the grounds

of irrelevance. As subsequent testimony

A-7

from this witness demonstrated, the state

offered the evidence to indicate that it

was not unusual for a shoplifter to offer

to pay for the merchandise after detection.

Also the evidence was offered to show that

the conduct of the manager after Wills'

detection was identical to his conduct in

other cases of shoplifting. For either of

these reasons, it was not error for the

question to be asked nor the answer to be

given. Any evidence is relevant which

logically tends to prove or to disprove a

material fact which is at issue in the

case, and every act or circumstance serving

to elucidate or to throw light upon a ma-

terial issue or issues is relevant. Harris

v. State, 142 Ga. App. 37, 41 (234 SE2d

798).

3. Wills also urges error in the

limitation by the trial court of the scope

of his cross examination. During the

A-8

examination of the employee who searched

Wills' tote bag, counsel for Wills asked

her to repeat her direct testimony of the

stop and search of Wills. When she had

completed that statement, counsel asked

her, over objection, to again repeat the

story, presumably to see if her testimony

would be consistent. As soon as she had

repeated the testimony she was asked to

tell it again. On this third occasion,

the etiel court sustained the objection

made by the state.

Cross examination may be curtailed if

the subject matter is repetitious as to

matter already developed on cross examina-

tion. Thompson v. State, 166 Ga. 758 (10)

(144 SE 301). Moreover, prejudice must be

shown by its exclusion. Freeman v. State,

230 Ga. 85 (1) (195 SE2d 416); Hudson v.

State, 137 Ga. App. 439, 440 (224 SE2d 48).

A-9

We discern no abuse of discretion in the

situation nor has appellant shown any preju-

dice.

4. Wills had testified that he

stopped at the register counter, removed

the shoes from the bag and had money in

his hand to pay for the shoes. He was

asked whether he could really dispute the

testimony of the employee who found the

shoes who had stated that Wills had pro-

ceeded past the counter and was three or

four feet from the exit of the store when

he was called back. Appellant urges error

in the question asking him to explain the

other witness' testimony. Actually the

transcript shows that the original question

was never answered. The state rephrased

the question and the answer thereto was

given without objection. We will not

grant a new trial for the simple asking of

a question that was not answered, especially

A-10

where the substance of the question is sub-

sequently posed and answered without ob-

jection. Moreover, the question properly

served to attack the veracity and credi-

bility of appellant's testimony on this

subject, an area certainly within the ap-

propriate scope of cross examination. We

find no abuse of discretion in the action

of the trial court in allowing the evidence.

Mitchell v. State, 236 Ga. 251, 256 (223

SE2d 650); Bailey v. State, 138 Ga. App.

807, 808 (227 SE2d 516).

5. In his last enumeration, Wills

complains the trial court erred in con-

sidering a previous conviction which is not

shown in the record to have been attended

by counsel. The transcript reflects that

the state presented to the court a certi-

fied copy of an earlier conviction for shop-

lifting. The document was not offered in-

to evidence and was not formally admitted,

A-1l

thus it is not a part of the record. Like-

wise the record reflects that appellant was

shown the certified copy of the prior con-

viction but made no objection to the ad-

missibility of the document on any ground,

nor did appellant voice any objection to a

consideration by the trial court in the

sentencing process. That being so, appel-

lant is not entitled to raise this issue

for the first time on appeal and thus pre-

sents nothing in this context for this

court to review. McKisic v. State, 238 Ga.

644 (5) (234 SE2d 908); Copeland v. State,

160 Ga. App. 786, 789 (12) (287 SE2d 120).

Judgment affirmed. Shulman, C.J., and

McMurray, P.J., concur.

A-12

IN THE STATE COURT OF

RICHMOND COUNTY, GEORGIA

STATE OF GEORGIA )

vs. CASE NO. A-125296

FRANK WILLS

ORDER DENYING MOTION FOR NEW TRIAL

AND AMENDED MOTION FOR NEW TRIAL

A hearing for a Motion For New Trial

and Amended Motion for New Trial having come

on for a hearing before the Honorable James

E. Slaton, Judge of the State Court of

Richmond County, Georgia on April 21, 1983,

and after hearing argument from both coun-

sels,

IT IS THEREFORE, ORDERED AND ADJUDGED

that the defendant's Motion For New Trial

and Amended Motion For New Trial is denied.

This 16th day of May, 1983.

S/

JUDGE JAMES E. SLATON

JUDGE, STATE COURT

RICHMOND COUNTY, GA

PRESENTED BY:

S/

GAYLE B. HAMRICK, SOLITICOR

STATE COURT, RICHMOND COUNTY, GA

A-14

IN THE STATE COURT OF RICHMOND COUNTY

STATE OF GEORGIA

THE STATE OF GEORGIA

Vs.

eee ee

FRANK WILLS

AMENDED MOTION FOR NEW TRIAL

NOW COMES FRANK WILLS, hereinafter re-

ferred to as Movant, and respectfully shows:

-2-

The Court erred in sentencing Movant to

a term of twelve months because such con-

viction was allegedly Movant's second of-

fense in that:

(a) The Court erred in considering evi-

dence of an alleged prior offense when his

counsel had not been previously apprised of

such (see Exhibit "B" attached hereto and by

reference made a part hereof) ;

A-15

(b) The Court erred in considering

an alleged second offense when it was un-

clear whether Movant was the same person as

included in the previous offense;

(c) The Court erred in considering an

alleged second offense when it was unclear

whether Movant was represented by counsel

in the previous case; and

(ad) The Court erred in failing and re-

fusing to exercise discretion in the sen-

tencing process.

SEE SE SB SB ERS BES E

A-16

WHEREFORE, Movant prays that his Motion

for New Trial, as amended, be granted.

This day of April, 1983

Respectfully submitted,

S/

JOHN H. RUFFIN, JR.

COUNSEL FOR MOVANT

1101 ELEVENTH STREET

AUGUSTA, GEORGIA 30901

This is to certify that I

have this day served counsel

for the opposing party in the

foregoing matter with a copy

of this pleading by depositing

in the United States Mail a

copy of same in a properly

addressed envelope with adequate

postage thereon.

This day of ,» is

Counsel for

PERSON(s) SERVED:

Mr. Gayle B. Hamrick

Solicitor, State Court

Richmond County, Georgia

Richmond, Georgia 30911

|

A-1/

CITY OF NORTH AUGUSTA

South Carolina

RECORDER'S COURT

DOCKET

Docket No.: 29673 Citation No.: GK 3639

Name: Frank NMN Wills N/M Defendant Plea Disp. of Court

DOB: 2-4-48

Guilty ( ) Guilty ( )

Address: 204 Five Notch Spur

Not Guilty ( ) Not Guilty (3

Charge: Shoplifting (First)

Nolo Con- Nolle Prossed ( )

Date of Violation: 9-05-79 tendere ( ) Sent to Higher

Time: 6:50 PM Court

Request Jury ( )

Location of Violation: Harris Teeter Bond Forfeit ( )

Date of Trial: 9-17-79 Bond: $108.25 Fine: $108.25 Or 30 Days

Officer: PSO Mosley Susp. $ And _ Days

Witness: Days cn Public Works

Defendant Atty.:

PAID TO CITY TREASURER S/ ; ——

Recorder's Signature

C Cashiers Stamp

EXHIBIT "B"

r kxkikei_ ixinaermreinneenrtregnZn£eeexeceen»:nren@ =.

A-19

TRANSCRIPT EXCERPT -- SENTENCING

THE COURT: All right, Mr. Hamrick, does

the defendant have any previous record?

MR. HAMRICK: Yes, Your Honor.

THE COURT: All right, read it out to the

Court.

MR. HAMRICK: Let me tender it to defense

counsel, Your Honor.

We will present, for sentencing purposes,

a certified copy of conviction from the

North Augusta City Recorder's Court imposed

on September 17, 1979 for the offense of

shoplifting.

THE COURT: In North Augusta?

MR. HAMRICK: Yes, sir.

THE COURT: When did that happen?

MR. HAMRICK: The date of the offense was

September of 1979, the date of trial

September 17, 1979.

A-20

THE COURT: ‘Would you like to make any

comments before sentencing on behalf of

your client?

MR. JAMES: We don't have anything to say

at this time, Your Honor.

THE COURT: All right, in view of your

record of shoplifting, I sentence you to

twelve months in the Richmond County Cor-

rectional Institution.

TRIAL CONCLUDED

SEEREEREEASBSEE EB SB BRR =

aa as es FF SF ee ee ee ee as =

A-21

OFFICIAL CODE OF GEORGIA

Offenses Involving Theft

§16-8-2. Theft by Taking.

A person commits the offense of theft

by taking when he unlawfully takes or, being

in lawful possession thereof, unlawfully ap-

propriates any property of another with the

intention of depriving him of the property,

regardless of the manner in which the

property is taken or appropriated.

§16-8-12. Penaities For Violation of Code

Sections 16-8-2 Through 16-8-9.

A person convicted of violation of

Code Sections 16-8-2 through 16-8-9 shall be

punished as for a misdemeanor except:

(1) If the property which was the sub-

ject of the theft exceeded $200.00 in value,

by imprisonment for not less than one nor

more than ten years or, in the discretion of

the trial judge, as for a misdemeanor;

FPEEEBRERBEBESBE ERB SRB RB RSS

ane ee He He ee ee etktktk = = =|

CODE OF LAWS OF SOUTH CAROLINA 1976

§16-13-110. Shoplifting.

(A) A person is guilty of shoplifting

if he:

(1) Takes possession of, carries away,

transfers from one person to another or from

One area Of a store or other retail mercan-

tile establishment to another area, or causes

to be carried away or transferred any mer-

chandise displayed, held, stored or offered

for sale by any store or other retail mer-

cantile establishment with the intention of

depriving the merchant of the possession,

use or benefit of such merchandise without

paying the full retail value.

(2) Alters, transfers or removes any

label, price tag marking, indicia of value

or any other markings which aid in determin-

ing value affixed to any merchandise dis-

played, held, stored or offered for sale in

a store or other retail mercantile establish-

A-23

ment and attempts to purchase such merchan-

dise personally or in consort with another

at less than the full retail value with

the intention of “*epriving the merchant of

the full retail value of such merchandise.

(3) Transfers any merchandise displayed,

held, stored or offered for sale by any

store or other retail mercantile establish-

ment from the container in which it is dis-

played to any other container with intent to

deprive the merchant of the full retail

value.

(B) Any person violating the provisions

of this section shail be deemed guilty of a

misdemeanor and upon conviction shall be

punished in accordance with the following:

(1) By a fine of not more than six hun-

dred dollars or imprisonment for not more

than six months, or both, for the first of-

fense. Provided, however, that if the

value of the shoplifted merchandise is less

HREREREBR BEE SSSR 532-=°5°

A-24

than fifty Aollars, the punishment shall be

a fine of not more than one hundred dollars

or imprisonment for not more than thirty

days.

(2) By a fine of not more than one

thousand dollars or imprisonment for not

more than one year, or both, for a second

offense.

(3) By imprisonment for not less than

one year nor more than five years for a

third or subsequent offense.

HISTORY: 1978 Act No. 507 §2, eff May 30,

1978.