
    28719.
    STAGGERS v. HOPPER.
    Submitted March 12, 1974
    Decided April 4, 1974
   Undercofler, Justice.

The appellant was convicted of molesting his minor daughter and was sentenced to 15 years imprisonment. He was granted a new trial because of the insufficiency of the evidence. Staggers v. State, 119 Ga. App. 85 (166 SE2d 411). Thereafter he unsuccessfully sought writs of habeas corpus on the issue of double jeopardy to prevent a retrial. Staggers v. State, 225 Ga. 581 (170 SE2d 430); Staggers v. Stynchcombe, 319 FSupp. 1305 (N. D. Ga. 1970), affirmed 436 F2d 585 (5th Cir. 1971). At his second trial the jury set his sentence at 20 years and recommended misdemeanor punishment. The trial judge did not accept the recommendation and sentenced the appellant to 20 years imprisonment. The appellant contends in this habeas corpus proceeding that this second sentence was the result of vindictiveness since it is a harsher sentence than the first.

The trial court found that during the retrial of the appellant and by agreement of counsel, a copy of the original indictment was sent to the jury which copy did not show the prior conviction. After the jury convicted and sentenced appellant on the second trial such findings were entered on the original indictment. The jury was not cognizant of the results of the first trial and it follows that the second sentence of the jury could not have been the product of vindictiveness. Chaffin v. Stynchcombe, 412 U. S. 17, 27 (93 SC 1977, 36 LE2d 714); Grace v. Caldwell, 231 Ga. 407 (202 SE2d 49).

The appellant also contends that the trial court was bound to accept the misdemeanor punishment recommended by the jury. We do not agree. In Harris v. State of Ga., 216 Ga. 740 (119 SE2d 352), we held that it is in the "discretion of the trial judge whether he will approve such recommendation, and his action in the matter is final.” Also Nelson v. Smith, 228 Ga. 117 (3) (184 SE2d 150). As to the present law on jury recommendations, see Ga. L. 1968, pp. 1249, 1334 (Code Ann. § 26-3101).

Judgment affirmed.

All the Justices concur.

Rehearing denied April 23, 1974.

Cherthel Lee Staggers, pro se.

Arthur K. Bolton, Attorney General, William F. Bartee, Jr., Assistant Attorney General, John B. Ballard, Jr., Deputy Assistant Attorney General, for appellee.  