concurring specially.
1. I concur in the judgment of affirmance of the conviction and the reversal and remand for resentencing.
2. Error enumerated as No. 4, "The trial court erred in passing sentence on defendant by its consideration of unrelated criminal charges, for which the defendant was not convicted or even tried,” presents a troublesome problem in this case. Code Ann. § 27-2503 (a) sets forth the provisions of a presentence hearing, and my review of transcripts of criminal cases indicates that most trial *677judges comply with this Code section in the following manner:
Court: "At this time, the court will resume the trial of this case for the purpose of conducting a presentence hearing, and the only issue for determination by the court shall be the punishment to be imposed. In this presentence hearing, counsel for both sides shall have the right, subject to the laws of evidence, to present to the court additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas. Upon completion of the introduction of such evidence as may be introduced, counsel for both sides shall then have the right to present their summations regarding the punishment to be imposed. The district attorney may proceed.”
(District attorney then seeks to introduce such evidence in aggravation as the state has made known to the defendant prior to trial.)
(Defense seeks to introduce such evidence in extenuation and mitigation thought admissible.)
(District attorney opens summation on sentence, and defense attorney concludes.)
This form of procedure protects the record, informs the defendant as to further procedure, informs counsel as to how the presentence hearing will be conducted, and lends a degree of formality to which the defendant is entitled because to him this is the most important phase of the entire trial proceeding.
In the subject case, after the jury was dismissed, the trial judge said, "All right, Mr. Posey, bring him around. Is there anything I need to hear before I do the sentence?” The defense attorney then made his summation to the court. The transcript does not show the district attorney or his assistant participated in any manner. After summation by the defense attorney, the trial judge then asked the defendant if he had been previously convicted of any crime; and, upon receiving an affirmative answer, the trial judge further interrogated the defendant as to category of crimes. In my view, this procedure does not *678comport with the presentence hearing prescribed by Code Ann. § 27-2503 (a).
3. Just before passing sentence, the trial court said, "... the number of other cases ... I certainly wouldn’t consider them as a conviction, but they are disturbing to me in number ... it would concern me some, but some of the other incidents I think I need to consider because they are in evidence before the court as a part of this case, and I think with the magnitude that’s indicated here that it would justify a maximum sentence, and yet on a first offense I don’t do that.” Since the sentence was set at 20 years with some probation time, we must conclude the trial judge did use the "other incidents” in aggravation when sentence was passed. This was error as the trial judge must follow the same law he charges the jury. In charging the jury as to these "other incidents,” they were admitted for a limited purpose only, as required by law, and they could not be used for any other purpose. The trial judge did use them for determining sentence. If the state desired to use these "other incidents” for aggravation purposes, they should have at least been submitted to the defendant before trial and their admissibility determined at the presentence hearing.
I think the sentence should be vacated and the case returned for resentencing.