concurring specially.
I agree with what is said in the opinion, except that as to Division 3, I concur only in its conclusion.
First, the transfer of the case to this court does not indicate that the Supreme Court considered appellant’s constitutional challenge without merit.
As the jurisdictional statement of appellant shows, Supreme Court review was sought because appellant challenged the constitutionality of two statutes, OCGA §§ 16-2-4 and 16-2-5. These relate to certain presumptions regarding a person’s will and intent. No doubt because statutory constitutionality has now been dealt with in Francis v. Franklin, 471 U. S. _ (105 SC 1965, 85 LE2d 344) (1985), rendering the question merely one of application rather than construction, Supreme Court jurisdiction was declined. Zepp v. Mayor &c. of Athens, 255 Ga. 449, 451 (339 SE2d 576) (1986). Its exclusive jurisdiction encompasses “all cases ... in which the constitutionality of a law . . . has been drawn in question.” Ga. Const. 1983, Art. I, Sec. VI, Par. II (1). Thus there appeared for review only whether the trial court’s charges to the jury on these subjects conformed to the constitutionally modified statutes or not, and the resolution of that question, dealt with in Division 2 of the opinion, falls within the jurisdiction of this court. Boswell v. State, 176 Ga. App. 855 (338 SE2d 62) (1985); Heard v. State, 175 Ga. App. 793 (334 SE2d 374) (1985). For further elucidation on this subject, see George v. State, 175 Ga. App. 229, 231 (333 SE2d 141) (1985).
Appellant does not challenge the constitutionality of the statute OCGA § 17-14-15 (b) but rather its application in his particular case. He urges that the state’s refusal in plea bargaining to recommend to the trial court the acceptance of a misdemeanor plea, and the court’s refusal to accept such a plea and appellant’s offered restitution plan, deprived him of federal and state constitutional rights to equal protection of the laws. Thus I believe it is no answer to say that the transfer to this court mandates the conclusion that the constitutional contentions are without merit. They have yet to be addressed. Appellant recognized this as a question within our jurisdiction, for he did not present it as a basis for Supreme Court jurisdiction when he filed his appeal there. Whether the prosecutor’s and the court’s actions in *708refusing appellant’s requests constituted unconstitutional applications of OCGA § 17-14-15 (b) and the scheme of which it is a part, would fall within the jurisdiction of this court. See Liles v. Still, 176 Ga. App. 65 (1) (335 SE2d 168) (1985).
Decided June 27, 1986 Rehearing denied July 9, 1986. Allen R. Hirons, for appellant. Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.After dispensing with the constitutional claims, the majority turns to the assertion that the statute was violated by the district attorney’s and the trial court’s refusals. Short shrift is given, as the majority concludes that OCGA § 17-14-15 (b) does not apply to appellant because he was not then an “offender” as statutorily defined. That is clearly so with respect to the plea bargaining efforts with the district attorney. The statutory scheme with respect to restitution, moreover, does not embrace plea bargaining as one of the forms of “relief’ to which it applies. OCGA § 17-14-2.