                              FOURTH DIVISION
                                DOYLE, P. J.,
                           COOMER and MARKLE, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    February 5, 2020




In the Court of Appeals of Georgia
 A19A2229. MILLER v. THE STATE.                                               MA-084C

      MARKLE, Judge.

      Orlando Miller was sentenced as a recidivist under OCGA § 17-10-7 (a) and

(c) following entry of his non-negotiated plea to the charge of failure to register as a

sex offender (OCGA § 42-1-12 (e) and (f)). On appeal, Miller challenges his

recidivist sentence, alleging that the trial court erred in (1) considering his nolo

contendere plea to a prior charge, and (2) admitting and considering two of the State’s

exhibits. After a thorough review of the record, we conclude that the trial court erred

in considering Miller’s nolo contendere plea as proof of a prior conviction under the
recidivist statute. Therefore, we vacate the sentence and remand the case for re-

sentencing consistent with this opinion.1

       The record shows that, in July 2018, Miller was charged with failure to register

as a sex offender with the Clarke County sheriff’s office following a 1988 California

conviction for rape. Prior to sentencing, the State filed its notice of intent to seek

recidivist sentencing based on Miller’s prior convictions for a previous failure to

register as a sex offender in Georgia, for his California conviction for rape, and a

burglary charge to which he had entered a nolo contendere plea.2

      At the plea hearing, the State introduced the prior California felony

convictions, to which the defense objected on grounds that the exhibits were not

properly certified. The trial court admitted both exhibits over objection. Miller then

entered a non-negotiated guilty plea, and was sentenced as a recidivist under OCGA




      1
        We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of
considering the case en banc.
      2
        This charge, for which Miller was previously on probation, was admitted
without objection. At a subsequent revocation hearing, the trial court revoked three
years of Miller’s probation. He does not challenge this on appeal.

                                            2
§ 17-10-7 (a) and (c) to twenty years, to serve the first five years in confinement and

five years of probation suspended. This appeal followed.

      1. Miller argues that the trial court erred in considering his nolo contendere

plea to the California burglary charge in sentencing him as a recidivist under OCGA

§ 17-10-7 (c). Specifically, Miller argues that the Court’s recent decision in Beasley

v. State, 345 Ga. App. 247 (812 SE2d 561) (2018) suggests that a nolo contendere

plea does not count as a prior conviction for sentencing purposes.3 He argues that the

plain language of OCGA §§ 17-7-95 and 17-10-7 (c) indicates that such a plea cannot

be used against him in sentencing him as a recidivist.4 We agree.

      3
       The Beasley panel unanimously agreed to overrule James v. State, 209 Ga.
App. 389 (2) (433 SE2d 700) (1993) and Spinner v. State, 263 Ga. App. 802, 803
(589 SE2d 344) (2003), because it relied on James, to the extent these cases
previously sanctioned the use of nolo contendere pleas in recidivist sentencing.
Beasley, 245 Ga. App. at 252. Thus, Beasley is binding precedent in this regard. It is
physical precedent only as to other parts of the majority opinion. See Court of
Appeals Rule 33.2 (a) (1).
      4
        The State argues that Miller waived this issue on appeal because he failed to
object at sentencing to the use of the nolo contendere plea to sentence him under the
recidivist statute. But, Miller’s argument is that his sentence was void. “We are
required to correct a void sentence, regardless of whether either party has raised the
error on appeal.” (Citation omitted.) Hughes v. State, 341 Ga. App. 594, 597-598 (3)
(802 SE2d 30) (2017). And, a challenge that a sentence is void cannot be waived. See
State v. Hanna, 305 Ga. 100, 103 (2) (823 SE2d 785) (2019) (“[A] sentence which
is not allowed by law is void, and its illegality may not be waived.”) (citation and
punctuation omitted); see also Headspeth v. State, 266 Ga. App. 414 (c) (597 SE2d

                                          3
      “We review the trial court’s interpretations of law and application of the law

to the facts de novo.” (Citation and punctuation omitted.) State v. Fowle, 348 Ga.

App. 107 (819 SE2d 719) (2018).

      Although we have previously sanctioned the use of convictions resulting from

nolo contendere pleas in sentencing under recidivist statutes, James v. State, 209 Ga.

App. 389 (2) (433 SE2d 700) (1993); see also Spinner v. State, 263 Ga. App. 802, 803

(589 SE2d 344) (2003) (citing James), in Beasley, 245 Ga. App. at 250-252, we

overruled that precedent on the ground that the plain statutory language demanded

that a nolo contendere plea could not be used to enhance a sentence in the absence of

a legislative intent to do so. Id. at 251-252.

      In Beasley, we evaluated whether a prior nolo contendere plea could be used

to establish the offense was a felony under the theft by shoplifting statute. Beasley,

345 Ga. App. at 249-253. We determined that when proof of a prior conviction was

an element of the crime, such a plea could not count as a prior conviction for

sentencing purposes because the plain language of the relevant statutes dictated

otherwise. Id. at 252-253; citing Blackmon v. State, 266 Ga. App. 877, 879 (598 SE2d

542) (2004). Beasley did not specifically overrule Miller v. State, 162 Ga. App. 730,

503) (2004).

                                           4
732-734 (4) (b) (292 SE2d 102) (1982), overruled in part on other grounds in

Matthews v. State, 268 Ga. 798, 803 (4) (812 SE2d 561) (2018). While

acknowledging that Miller may not have been decided correctly, we determined that

the issue in Miller, which focused primarily on the plain reading of the recidivist and

nolo contendere statutes and the absence of a legislative intent to authorize the use

of nolo contendere pleas for sentence enhancement, was not squarely before the

Beasley Court. Although the use of nolo contendere pleas for recidivist sentencing

was not before this Court in Beasley, we opined that such use would also be improper

under the relevant statute. That question is squarely before us now, and we conclude

that the same rationale applies to the relevant statutes in this case.

      In interpreting the statutes at issue, we are mindful that

      our charge as an appellate court is to presume that the General Assembly
      meant what it said and said what it meant. Toward that end, we must
      afford the statutory text its plain and ordinary meaning, consider the text
      contextually, read the text in its most natural and reasonable way, as an
      ordinary speaker of the English language would, and seek to avoid a
      construction that makes some language mere surplusage. Further, when
      the language of a statute is plain and susceptible to only one natural and
      reasonable construction, courts must construe the statute accordingly.




                                           5
(Citations and punctuation omitted.) Mays v. State, 345 Ga. App. 562, 563-564 (814

SE2d 418) (2018).

      Turning to the statutes at hand, OCGA § 17-10-7 (c) provides that


      any person who, after having been convicted under the laws of this state
      for three felonies or having been convicted under the laws of any other
      state . . . of three crimes which if committed within this state would be
      felonies, commits a felony within this state shall, upon conviction for
      such fourth offense or for subsequent offenses, 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.


OCGA § 17-7-95 (c) provides that

      [e]xcept as otherwise provided by law, a plea of nolo contendere shall
      not be used against the defendant in any other court or proceedings as
      an admission of guilt or otherwise or for any purpose[.]


(emphasis supplied).5

      When read together, the plain language of these statutes makes it clear that a

nolo contendere plea does not count as a prior conviction for sentencing purposes



      5
       We note that California recognizes the use of nolo contendere pleas. See Cal.
Penal Code, § 1016 (West 1998).

                                         6
under the recidivist statute because OCGA § 17-10-7 does not specifically so provide.

We now expressly conclude that nolo contendere pleas cannot be used in sentencing

under the recidivist statute.

      In light of this analysis, we take this opportunity to overrule our holding in

Miller v. State, 162 Ga. App. 730, 732-734 (4) (b) (292 SE2d 102) (1982) and

Phillips v. State, 329 Ga. App. 279, 282 (2) (a) (764 SE2d 879) (2014), and conclude

that the use of a nolo contendere plea to establish recidivist sentencing cannot stand.

      In Phillips, which relied on Spinner, we considered the defendant’s ineffective

assistance of counsel claim and concluded that counsel’s failure to object to the use

of a nolo contendere plea for recidivist sentencing was not deficient performance.

Phillips, 329 Ga. App. at 882-883 (2) (a). To the extent that Phillips stands for the

proposition that a nolo contendere plea can be used for recidivist sentencing, it is

disapproved. Thus, because we improperly allowed the use of such prior offenses in

Miller and Phillips for the purpose of recidivist sentencing, these cases are overruled

to the extent they suggest a rule contrary to this decision.

      Accordingly, the trial court erred in considering Miller’s prior California

conviction for burglary in sentencing him, and we therefore vacate the sentence



                                           7
imposed and remand the case to the trial court for resentencing, consistent with this

opinion.

      2. Miller also argues that the California convictions should not have been

considered because they lacked the hallmarks of authenticity under OCGA § 24-9-

922 and Rice v. State, 178 Ga. App. 748 (344 SE2d 720) (1986). In light of our

conclusion in Division 1 that the nolo contendere plea could not be used as a

predicate offense for recidivist sentencing, we need not address this argument. The

recidivist statute requires three prior felony convictions; and thus, without the nolo

contendere plea, Miller did not have the requisite number of convictions to trigger the

provisions of OCGA § 17-10-7 (c).

      Judgment vacated, and case remanded with direction. Doyle, P. J., and

Coomer, J., concur.




                                          8
