Ellington, Presiding Judge.Derrick Mitchell entered a non-negotiated guilty plea to one count of family violence battery, OCGA § 16-5-23.1 (f) (2), in the Superior Court of Coweta County. Because Mitchell had a prior conviction for family violence battery, the court imposed a felony sentence of five years, two to serve in prison and the balance on probation. Mitchell appeals his sentence, contending that the court should have applied the rule of lenity and sentenced him for a misdemeanor.
The record shows that, at about 3:00 a.m. on October 20, 2015, Mitchell went to his former girlfriend’s apartment because he thought that another man was living with her. When he arrived, he argued with the victim and loudly berated her. The argument ended with Mitchell punching the victim in the mouth several times. The victim called the police, and the responding officer found the victim holding an ice pack to her swollen and bruised mouth. The officer then spoke to Mitchell, who was nervous and agitated. He admitted to the officer that he was upset with the victim and that he had argued with her; however, he denied having hit her.During the plea hearing, the prosecutor tendered, without objection, a certified copy of Mitchell’s previous family violence battery conviction against the same victim. The exhibit shows that Mitchell entered his plea to misdemeanor family violence battery on May 16, 2016, for an incident that occurred during the previous year, on May 12, 2015. Mitchell committed the instant crime on October 20, 2015 — after the first offense had occurred but prior to the date he was sentenced for the first offense. Mitchell was indicted for the October 2015 incident on November 2, 2016; and he entered his guilty plea to that offense on January 26, 2017. Because Mitchell had a prior conviction for family violence battery, the trial court imposed a felony conviction pursuant to OCGA § 16-5-23.1 (f) (2) (B). That Code section provides that, “[u]pon a second or subsequent conviction of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.” Id.
