concurring specially.
I concur in that defendant had notice of the court’s awareness of his earlier conviction, so that it would be bound to impose the mandatory life sentence of OCGA § 16-13-30 (d). He knew in advance of trial what sentence he faced if convicted, as he is presumed to know the law1 and he was advised by the State of its intent to present “similar transaction” evidence. However, I do not agree that a repeat drug offender is not entitled to notice that he will be subject to recidivist punishment under OCGA § 16-13-30 (d), and for that reason, I decline to join in overruling State v. Marshall, 195 Ga. App. 535 (394 SE2d 379) (1990).
By its terms, OCGA § 17-10-2 (a) is applicable to “any felony case,” except those “in which the death penalty . . . may be imposed.” It is not, as the majority suggests, applicable only to repeat felony offenders as to whom the court has discretion in imposing sentence. It entitles the felony defendant to a pre-sentence hearing at which “only such evidence in aggravation [of punishment] as the state has made known to the defendant prior to [his] trial shall be admissible.” This provision is mandatory. DeLoach v. State, 142 Ga. App. 666 (2) (236 SE2d 904) (1977); Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992). The requirement of notice comports with the concerns of due process. Without it, a defendant is not aware of whether his or her past record, or any part of it, accurate or inaccurate, will affect the sentence or influence the judge. Without notice, and the opportunity to anticipate which notice provides, a defendant cannot adequately prepare a response or explanation.
Although under OCGA § 16-13-30 (d), a prior conviction for certain offenders automatically subjects them to life imprisonment and divests the sentencing court of discretion to impose a more lenient sentence, evidence of the previous conviction is nevertheless offered in “aggravation” of punishment, as a predicate for the mandatory sentence. The very severity of it, its inevitability, heightens rather than eliminates the need for notice. The fact that the judge will have no discretion does not negate the need; it merely shortens the presentence inquiry. Knowing before trial that a judge will be forced to impose a certain sentence by law because of a prior crime or crimes *801which the judge is made aware of may affect the plea negotiations or defense strategies, for example.
Decided July 14, 1993 — Reconsideration denied July 30, 1993 — Neil L. Heimanson, for appellant. Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.Moreover, the statute does not say that only those parts of a defendant’s criminal record which will not automatically affect the sentence shall be noticed to defendant beforehand. One must keep in mind that this dossier is evidence over and above the evidence introduced at trial but just as potent a factor, if not more so, in the determination of punishment.
The majority suggests that defendant would receive “no material benefit” from pretrial notice of the intent to use his prior conviction at sentencing and distinguishes between discretionary sentencing under OCGA § 17-10-2 (a) and the mandatory provision of OCGA § 16-13-30 (d). However, a prior conviction might have been vacated following appeal or habeas corpus proceedings, unknown to the prosecuting attorney or to the sentencing court. An offender subject to a sentence set by the legislature rather than by the court must be entitled to the same opportunity to refute that prior “conviction.” See, e.g., Phillips v. Stynchcombe, 231 Ga. 430 (6) (202 SE2d 26) (1973).
Finally, the conclusion of the majority is in conflict with the Supreme Court’s pronouncements on this issue. In Edwards v. State, 260 Ga. 121, 122 (1) (390 SE2d 580) (1990), the Court interpreted its decision in State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984) as follows: “This Court has indicated that before the state can seek a life sentence under § 16-13-30 (d), the state must give notice before trial under § 17-10-2 (a) of the conviction the state plans to use in aggravation.” Accord Moss v. State, 206 Ga. App. 310 (5) (425 SE2d 386) (1992). Accordingly, I reject the majority’s attempt to overrule Marshall, supra.
I am authorized to state that Judge Blackburn and Judge Smith join in this opinion.
Martin v. State, 160 Ga. App. 275, 277 (1) (287 SE2d 244) (1981); Levar v. State, 106 Ga. 42, 49-50 (3) (29 SE 467) (1897).