dissenting.
I dissent to Division 6 of the majority opinion. Defendant complains that the judge erred in failing to conduct a pre-sentence hearing as required by Code Ann. § 27-2503. In the present case, after receiving the verdict of guilt, the trial judge stated to defense counsel, “It will be necessary for me to get a pre-sentence on this defendant unless you want to waive a pre-sentence investigation, Mr. Williams, if you want to I will be back up here next week.” The defense attorney stated, “I’d like to speak to my client before I waive it.” The record of the proceedings ended without any indication of a decision by the defense counsel. The defendant’s apparent decision was to have a pre-sentence investigation since the record of the proceedings recommenced at a time after a pre-sentencing investigation report had been prepared.
When court reconvened the trial judge asked defense counsel if he had received the pre-sentence report and he indicated that he had. The judge next asked defense counsel if he had any objections to the judge looking at it for the first time. Counsel made no objection. The defendant was brought before the bench and the judge asked him if he had anything to say before sentence was imposed. The defendant made a statement on his own behalf indicating he had no intention of committing a crime. Next, defense counsel was recognized and he made an argument to the court on defendant’s behalf. After a discussion between the judge, counsel and the defendant concerning this crime and the defendant’s previous record, the judge sentenced the defendant to fifteen years.
Defense counsel’s participation in the pre-sentencing procedure in the present case would in my opinion constitute a waiver of defendant’s right to present evidence at the pre-sentencing hearing under the reasoning expressed by our Supreme Court in McNeese v. State, 236 Ga. 26 (222 SE2d 318) (1976). The Supreme Court stated therein: “ ‘A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ ” Id. at 30.
Furthermore, it is apparent that a pre-sentence hearing was held; however, no additional evidence in extenuation, mitigation and aggravation of punishment was presented by either party. Code Ann. § 27-2503 (a). There is no claim that the state introduced any evidence in aggravation of punishment. Nor is there a contention that the defendant was unable to introduce evidence. The only possible claim of error was that the trial judge improperly utilized the pre-sentence investigation report in aggravation of punishment. However, I see no merit to this contention.
The pre-sentencing investigation which was considered by the *749court may only be used to determine whether or not the sentence to be imposed, or any part thereof, will be probated or suspended. The pre-sentence investigation may not under any circumstances be used in aggravation of punishment. Code Ann. § 27-2709. Threatt v. State, 156 Ga. App. 345 (274 SE2d 734) (1980), should be overruled to the extent that the decision therein conflicts with this statement. “The information in these reports cannot be regarded as ‘evidence’ either in aggravation or in mitigation as such reports are not a part of the evidence introduced at the pre-sentence hearing.” Munsford v. State, 235 Ga. 38, 45 (218 SE2d 792) (1975).
In the present case there is no indication in the record that the trial judge improperly utilized this pre-sentence investigation report. “ [I]n the absence of a showing that the trial court had considered the presentence report in aggravation of punishment rather than ‘for the purpose of deciding whether to suspend or probate all or some part of the [sentence] to be imposed,’ there was no ground for reversal.” Almon v. State, 151 Ga. App. 863, 865 (261 SE2d 772) (1979). The trial judge revealed the report to defense counsel in advance of the pre-sentence hearing, allowing him an opportunity for explanation or rebuttal. Compare Munsford v. State, supra. The transcript does not show that the report was considered as evidence by the trial judge or used to increase the length of the sentence, since the sentence was less than the maximum sentence which could have been imposed in the case. The record in no way indicates that any comments by the trial judge related to the length of the sentence as opposed to his decision whether or not to probate the sentence.
For the foregoing reasons I must respectfully dissent. I am authorized to state that Judge Sognier joins in this dissent.