dissenting.
I concur in Divisions 1 and 2 of the majority opinion but respectfully dissent from Division 3. The law in force when Fleming was tried and sentenced permitted the trial court to consider First Offender application.
Penal statutes must be construed strictly against the government. Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). Where there is any ambiguity, it is interpreted in favor of the defendant. Id. See Chapman v. State, 266 Ga. 356, 362, n. 17 (467 SE2d 497) (1996). This is a principle founded upon due process and the concept that a citizen has a right to know precisely what behavior is forbidden and what punishment can result. Underlining this is the legislature’s direct expression that the general probation article “shall be liberally construed so that its purposes may be achieved.” OCGA § 42-8-44. The first offender article, which is part of the same Code chapter covering probation, provides for probation for a certain category of offenders and should be construed likewise. See, e.g., Helton v. State, 166 Ga. App. 565 (305 SE2d 27) (1983).
In March 1997 when Fleming was sentenced, OCGA § 17-10-6.1 (b) was in effect in its unamended 1994 form. Before the court imposed sentence, Fleming petitioned the court to consider treating him as a first offender as provided in OCGA §§ 42-8-60 through 42-8-65, by “withholding” conviction and giving him an opportunity to successfully complete a sentence so he could escape a conviction for the crimes, which he admitted. OCGA § 42-8-62 (a) allows a trial court to choose to impose punishment on a first offender who, if the punishment is successfully completed, is discharged with the consequence that there is no “court adjudication of guilt” and the offender “shall not be considered to have a criminal conviction.”
The court did not consider this possibility for Fleming but instead applied OCGA § 17-10-6.1 because the court believed that it had “no authority or discretion” and was compelled to enter a judgment of guilt and impose a sentence of ten years as a mandatory minimum term of imprisonment for the armed robbery in accordance with OCGA § 16-8-41 (b). Ten years is the minimum under both OCGA § 16-8-41 (b), the armed robbery statute, and OCGA § 17-10-6.1 (b), the serious violent offender statute known as the Sentence Reform Act of 1994. The judge perceived that the first offender option *494was foreclosed by these two statutes.
But that was not correct. At the time Fleming was sentenced, the mandatory aspect of OCGA § 17-10-6.1 (b) applied only to persons who were “convicted,” as the statute expressly stated. The same legislature which required the mandatory minimum sentence of incarceration for persons “convicted” of certain serious violent felonies set up a method for punishment and supervision, short of conviction, for first offenders. OCGA §§ 42-8-60 to 42-8-65. As the law stood, in such instances the legislature preserved the authority of the judiciary in fulfilling the sentencing function.3 The option was available for appropriate cases in the sentencing judge’s discretion, which is exercised “[u]pon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt.” OCGA § 42-8-60 (a).
This construction of the law then in effect is inevitable when the plain meaning of the words is honored. A jury verdict is not a conviction; the court’s entry of judgment is based on the verdict, contains the sentence, and constitutes the “conviction.” Sartin v. State, 223 Ga. App. 759, 761 (4) (479 SE2d 354) (1996). The jury did not “convict” Fleming. Instead, it found him guilty of committing certain crimes, as memorialized by its written verdicts. After it returned its verdicts in open court, the jury’s function was accomplished. As the court advised the jurors, “[sjentencing addresses itself to me rather than to members of the jury under . Georgia law.” That being so, the case must be remanded to the trial court so it can exercise the discretion preserved to it by OCGA § 42-8-60.
Since Fleming’s sentencing and since this Court’s decision in State v. Allmond, 225 Ga. App. 509 (484 SE2d 306) (1997), both of which occurred in the same month, the legislature has amended OCGA § 17-10-6.1 (b) and added OCGA § 42-8-66 to the First Offender Act. These changes went into effect one year later, in March 1998.
In the changes, the legislature has made plain that it did not mean what it said when OCGA § 17-10-6.1 was written. It did not intend, it now has stated, that persons who commit a serious violent felony as designated in OCGA § 17-10-6.1 could be subject to first offender treatment if a judge would so decide. It has changed the meaning of the term “convicted” in OCGA § 17-10-6.1 and in the First Offender Act so that the statutory mandatory minimum term of ten years’ imprisonment must be imposed on any person who is found *495guilty by a jury4 or pleads guilty or nolo contendere to a designated serious violent offense. We must give that meaning to the word in this limited instance, despite its ordinary meaning, because the legislature has used “convicted” instead of what is really intended. Ordinarily, a person who is “convicted” has already been sentenced, as that aspect of the criminal prosecution precedes the entry of the judgment of conviction. But, in the amendment (OCGA § 17-10-6.1 (b)) and in the addition (OCGA § 42-8-66), “conviction” now must be construed to mean “found guilty or pleads guilty or nolo contendere.”
Decided July 16, 1998 Patricia A. Buttaro, for appellant.But that was not true in 1997 when Fleming was sentenced. At that time, in those provisions of the law as well as in others where it is used (e.g., OCGA § 42-8-62), “conviction” had the meaning ascribed to it in State v. Allmond, supra. Allmond was correct when decided. The law has now changed. But the change did not affect Fleming’s case.
Campbell v. State, 268 Ga. 44 (485 SE2d 185) (1997), does not require a different result. It addressed the constitutionality of OCGA § 17-10-6.1 (b) and did not discuss at all its relationship to OCGA § 42-8-60 et seq. Appellants did not seek the application of the First Offender Act but instead challenged the constitutionality of the serious violent offender statute under which they were convicted on their guilty pleas.
The change in the meaning of “convicted” cannot be given retroactive effect. “The law as it exists at the time of the offense determines both the penalty that may be imposed and the conduct that is considered to be a crime. [Cits.]” (Footnote omitted.) Hicks v. State, 228 Ga. App. 235, 237 (1) (b) (494 SE2d 342) (1997).
Fleming does not argue that State v. Allmond, supra, “mandates” first offender treatment. Both in the trial court and here, Fleming recognizes that the judge may choose this diversionary course or not. If the judge does choose it, and if Fleming abides by its terms and is discharged, the statutory consequence is that there will be no “court adjudication of guilt” and he “shall not be considered to have a criminal conviction.” OCGA § 42-8-62 (a).
I am authorized to state that Chief Judge Andrews and Judge Blackburn join in this dissent.
*496William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.Although the legislature has the power to fix punishment because it is a matter of public policy, so that limiting the judicial authority is not an unconstitutional encroachment on judicial independence, the narrowing of the opportunities to exercise judicial discretion constitutes a practical constriction of judicial independence.
OCGA § 42-8-60 (a) states “upon a verdict,” which on its face constitutes a jury finding of guilt; it does not state “upon a finding of guilt,” which would also include a judge’s finding of guilt.