dissenting.
I respectfully disagree with the majority’s conclusion that the trial court acted appropriately when it sentenced appellant Mack Butler under both OCGA § 16-13-30 (d) (1994) and OCGA § 17-10-7 (c) (1994). My disagreement is based on three principles of law we have applied when presented with the question of the application of competing recidivist sentencing statutes: (1) OCGA § 17-10-7 is not applicable where, as here, sentencing provisions are contained in the statute appellant was convicted of violating (Mikell v. State, 270 Ga. 467, 468 (510 SE2d 523) (1999) (“OCGA § 17-10-7 provide[s] for enhanced sentencing of repeat offenders where no other sentencing provision controlfs].”) (emphasis supplied)); (2) “[I]n interpreting the interplay of § 16-13-30 (d) and § 17-10-7, we must bear in mind the principle that ‘a specific statute [§ 16-13-30] will prevail over a general statute [§ 17-10-7], absent any indication of a contrary legislative intent.’ [Cit.]” Mann v. State, 273 Ga. 366 (1) (541 SE2d 645) (2001); and (3) “[I]n interpreting criminal statutes, it is axiomatic that any ambiguities must be construed most favorably to the defendant.” Id.
Butler was arrested on July 22, 1994, following his alleged sale of crack cocaine for $20, and was charged with violating OCGA § 16-13-30 (b) (unlawful to sell or possess with intent to distribute a controlled substance). At that time,* 5 OCGA § 16-13-30 (d) provided that “any person who violates subsection (b) of this Code section with respect to a controlled substance . . . shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a *314second, or subsequent offense, he shall be imprisoned for life.” (Emphasis supplied.) Ga. L. 1980, p. 432, § 1. At that time (and to the present time), OCGA § 17-10-7 (c) provided that any person previously convicted of three felonies must, upon conviction of a fourth non-capital felony, “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served[,]” and OCGA § 17-10-7 (e) provided that “[t]his Code section is supplemental to other provisions relating to recidivous offenders.”6 The trial court applied OCGA § 16-13-30 (d) to sentence appellant to life imprisonment, and applied OCGA § 17-10-7 (c) to make appellant’s sentence one without the possibility of parole.
OCGA § 16-13-30 (1994) contained a sentencing provision for repeated violations of that statute, and that sentencing provision called for the imposition of a life sentence “upon conviction for a second or subsequent offense.” In Mikell, supra, 270 Ga. at 468, we rejected the State’s assertion that the sentencing provisions of OCGA § 17-10-7, the general recidivist statute, overrode the sentencing provisions of the statute Mikell was convicted of violating. See also Norwood v. State, 249 Ga. App. 507 (2) (548 SE2d 478) (2001) (enhanced sentencing scheme of OCGA § 16-7-1 prevails over general recidivist scheme of OCGA § 17-10-7).7 The same rule is applicable here — the enhanced sentencing provision of the statute Butler was convicted of violating, OCGA § 16-13-30, prevails over the general recidivist sentencing scheme.
In Mann v. State, supra, 273 Ga. at 368-369, we were faced with a version of OCGA § 16-13-30 (d) amended in 1997 which authorized a trial court to impose a sentence of “not less than ten years nor more than 40 years or life imprisonment,” and which stated OCGA § 17-10-7 (a) “shall not apply to a sentence imposed for a second such offense; provided, however that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.” This Court *315concluded that the provisions of OCGA § 17-10-7 did not apply in sentencing Mann for his third conviction for violating OCGA § 16-13-30 (b) because OCGA § 16-13-30 (d) could reasonably be interpreted as granting trial courts discretion in sentencing for a third or subsequent offense, and criminal statutes must be construed most favorably to the defendant. See also Scott v. State, 248 Ga. App. 542 (2) (545 SE2d 709) (2001) (sentence vacated and case remanded because trial court failed to exercise its discretion to sentence defendant for fourth violation of OCGA § 16-13-30 (b)). The same rule applies in this case-OCGA § 16-13-30 (d) (1994) can reasonably be interpreted as providing the trial court with discretion of sentencing Butler to life imprisonment, and Butler, as a criminal defendant, is to be afforded that favorable construction.
Decided November 20, 2006. Brandon S. Clark, Craig T. Pearson, for appellant. Tom Durden, District Attorney, Sandra Dutton, Assistant District Attorney, for appellee.Inasmuch as OCGA § 16-13-30 (d) authorized the trial court to sentence appellant to life imprisonment for his fourth conviction for violating OCGA § 16-13-30 (b), I believe the sentence of life imprisonment without the possibility of parole should be vacated and the case remanded to the Court of Appeals with direction that it remand the case to the trial court for imposition of sentence pursuant to OCGA § 16-13-30 (d). Because the majority concludes that imposition of the sentence of life imprisonment without the possibility of parole was statutorily sound, I respectfully dissent.
Our attention must be focused on the law in force at the time the crime was committed. Yates v. State, 263 Ga. App. 29, 30 (2) (587 SE2d 180) (2003) (“Where a crime is committed on a certain date, the penalty which attached to the crime on that date is the penalty exacted by our law.”). See also Thompson v. State, 278 Ga. 394, 395 (603 SE2d 233) (2004) (“The ex post facto doctrine ‘forbids the application of any new punitive measure to a crime already consummated.’ [Cit.]”).
As noted earlier, OCGA § 17-10-7 (e) has been in force at the time of every case in which the application of the general recidivist statute versus the specific recidivist sentencing scheme has been debated, and it has never been cited or deemed to be controlling. See cases cited infra.
The majority’s passing reference at the close of its opinion to Mims v. State, 225 Ga. App. 331 (2) (484 SE2d 37) (1997), is without force in this case. The issue in Mims was whether sentences entered on the same day constituted one conviction for purposes of recidivist sentencing. Furthermore, Mims is distinguishable on its facts - while Mims was facing sentencing for violating OCGA § 16-13-30 (b), his prior convictions were not all for violations of OCGA§ 16-13-30 (b). In State v. Chambers, 275 Ga. App. 666 (621 SE2d 588) (2005), the Court of Appeals concluded that the general recidivist statute took precedence when the defendant’s prior convictions included convictions for violating statutes other than the statute for which the defendant was then being sentenced for violating (i.e., defendant being sentenced for burglary had prior felony convictions for robbery, criminal damage to property, as well as burglary). That qualification is not present in the case at bar and its propriety is not before the Court.