dissenting.
Because I do not agree that nolo contendere pleas may be considered in probation revocation proceedings, I must respectfully dissent.
After entering a guilty plea to one count of possession of marijuana and one count of sale of cocaine, Bolden was sentenced as a first offender to three years, to serve sixty days, and to complete the Intensive Probation Program. While on probation, Bolden entered a nolo contendere plea to a charge of theft by taking. The State filed a probation revocation petition based upon the commission of a subsequent offense. At the revocation hearing, the only evidence introduced was a certified copy of Bolden’s nolo contendere plea to the theft by taking charge. Bolden’s attorney objected to its use, citing OCGA § 17-7-95.
OCGA § 17-7-95 (c) pertinently provides: “Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.” In State v. Rocco,4 the Supreme Court of Georgia recognized other situations wherein the law specifically provided for the use of nolo contendere pleas: OCGA §§ 40-5-63 (a) (2) and 40-5-58 (d) allow for the consideration of nolo contendere pleas to determine DUI recidivism. Id. Additionally, OCGA § 17-10-2 (a) allows consideration of a defendant’s record for sentencing purposes, including nolo contendere pleas. However, there is no legislative enactment which otherwise allows for the consideration of nolo contendere pleas in probation revocation hearings.
The plain language of OCGA § 17-7-95 (c) provides that Bolden’s nolo contendere plea cannot be used against her for any purpose, except as provided by law. As the law does not provide for the use of such pleas for the purpose of probation revocation, the trial court erred in considering the plea as the factual basis of the commission of the subsequent crime.
Although the trial court is authorized to find a violation of probation by only a preponderance of the evidence, OCGA § 42-8-34.1 (a), such evidence must be admissible evidence. “Inadmissible evidence is *828no evidence at all.” Amiss v. State.5 Because of the clear mandate of OCGA § 17-7-95 (c), Bolden’s nolo contendere plea was not admissible evidence of the theft by taking charge in these circumstances.
The majority’s reliance upon OCGA § 17-10-2 (a) is untenable. OCGA § 17-10-2 (a) provides for the admission of nolo contendere pleas at presentence hearings. However, it is clear from the face of the statute that it exclusively applies to hearings where “the only issue shall be the determination of punishment to be imposed.” (Emphasis supplied.) At Bolden’s hearing, however, the evidence was offered for more than the determination of “punishment.” The nolo contendere plea was admitted as the sole evidence of the initial determination that a probation violation had occurred. See OCGA § 42-8-34.1 (a) (“no court may revoke any part of any probated or suspended sentence unless . . . the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation”). Since the evidence was offered to support more than just the determination of punishment, the admission of Bolden’s nolo contendere plea did not fall within the exception of OCGA § 17-10-2 and was therefore inadmissible under OCGA § 17-7-95 (c).
Furthermore, the majority’s reliance upon Gilbert v. State6 is misplaced. First, the language in Gilbert is dicta and is not binding on the court. Further, Gilbert is distinguishable because it did not involve the first offender statute, it did not involve the admissibility of nolo contendere pleas, and it did not involve the revocation of probation. Second, Gilbert’s dicta is not inconsistent with this dissent. That court stated that OCGA § 17-10-2 applied “in those cases in which sentence is imposed after a jury trial, a bench trial or probation revocation proceedings for a first offender.” (Emphasis supplied.) Id. at 546 (2). Here, the nolo contendere plea was not offered during the sentencing after the revocation of probation, but was offered as evidence for the initial determination of a violation. No court has applied OCGA § 17-10-2 to admit nolo contendere pleas during the initial determination of a probation violation in first offender revocation proceedings. We should not ignore the clear mandate of OCGA § 17-7-95 (c) and allow for such an admission here. I would reverse the trial court’s holding.
I am authorized tó state that Presiding Judge Andrews joins this dissent.
*829Decided July 16, 2001 Reconsideration denied July 31, 2001 Gerard B. Kleinrock, for appellant. J Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.State v. Rocco, 259 Ga. 463, 464 (384 SE2d 183) (1989).
Amiss v. State, 135 Ga. App. 784, 787 (219 SE2d 28) (1975).
Gilbert v. State, 245 Ga. App. 544 (538 SE2d 104) (2000).