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Lawskills.com Georgia Caselaw
MIKELL v. THE STATE.
S98G0968.
THOMPSON, Justice.
We granted certiorari to the Court of Appeals in Mikell v. State, 231 Ga. App. 85 (498 SE2d 531) (1998), to determine whether a trial court must exercise discretion under OCGA 16-13-32.5 (c) (2) in sentencing a defendant for a second or subsequent violation of OCGA 16-13-32.5 (b) (distributing a controlled substance within 1,000 feet of a public housing project). We answer in the affirmative.
Mikell was charged and convicted of violating OCGA 16-13-32.5 (b), as well as OCGA 16-13-30 (b) (selling a controlled substance), and OCGA 16-10-24 (obstructing a police officer by resisting arrest). He had one prior conviction for possession with intent to distribute a controlled substance (OCGA 16-13-30 (b)), and one prior conviction for possession with intent to distribute cocaine within 1,000 feet of a public housing project (OCGA 16-13-32.5 (b)). Predicated on those prior convictions, the district attorney served notice of its intent to prosecute and sentence Mikell under the general recidivist statute, OCGA 17-10-7 (a). 1 During the sentencing hearing, the State urged that the trial court was required to apply the recidivist sentencing provision of OCGA 17-10-7 (a) to the second violation of OCGA 16-13-32.5 (b) and sentence Mikell to the maximum amount of time prescribed -- imprisonment for 40 years, to run consecutively. The court agreed and sentenced Mikell to life imprisonment for the sale of a controlled substance; 40 years for distribution within 1,000 feet of a public housing project, to run consecutively; and 12 months for obstruction, to run concurrently.
OCGA 16-13-32.5 (c) (2) 2 contains a separate provision setting forth the mandatory range of punishment for "a second or subsequent conviction" under OCGA 16-13-32.5 (b). Thus, while the legislature directed that a second offender must be sentenced under subsection (c) (2), it also vested the sentencing court with discretion in determining the length of the sentence within the specified statutory range. Both the trial court and the Court of Appeals incorrectly applied the recidivist sentencing provision of OCGA 17-10-7, which mandated that Mikell "be sentenced to undergo the longest period of time prescribed for the punishment for the subsequent offense for which he stands convicted" -- in this case, 40 years. Instead, the court was authorized to exercise discretion under subsection (c) (2) and impose a consecutive sentence of five to forty years in prison.
We reject the State's assertion that the general recidivist statute, OCGA 17-10-7, overrides the sentencing provisions of OCGA 16-13-32.5 (c) (2). The initial rule of statutory construction is to look to the legislative intent and to construe statutes to effectuate that intent. OCGA 1-3-1 (a). The uncodified preamble to OCGA 16-13-32.5 at Ga. L. 1992, p. 2043, 1, states in pertinent part that the legislation was enacted to create a "new criminal offense" of prohibiting the manufacture, distribution, and possession with intent to distribute a controlled substance or marijuana within 1,000 feet of property dedicated as a park, playground, or a publicly owned or operated housing project. As explained by the sponsor of the legislation, the bill was proposed at the request of constituents who demanded tougher drug laws because of the potential impact of drugs on their children. 9 Ga. St. L. Rev. 212, 213 (1992). The plain language of OCGA 16-13-32.5 effectuates the stated legislative intent. Moreover, this legislation was enacted by the General Assembly with full knowledge that OCGA 17-10-7 provided for enhanced sentencing of repeat offenders where no other sentencing provision controlled. Compare Stone v. State, 218 Ga. App. 350 (1) (461 SE2d 548) (1995), relying on State v. Baldwin, 167 Ga. App. 737 (4) (307 SE2d 679) (1983) (repeat armed robbery offender indicted as a recidivist is subject by the express terms of OCGA 16-8-41 (d) to the sentencing provisions of OCGA 17-10-7). Even assuming arguendo that the two statutes may be in conflict, the more recent legislative expression prevails. Jenkins v. State, 265 Ga. 539 (1) (458 SE2d 477) (1995).
We hold that the trial court is authorized under OCGA 16-13-
32.5 (c) (2) to exercise discretion in sentencing a repeat offender to a term of imprisonment within the statutory range, and is not bound by the provisions of OCGA 17-10-7. Accordingly, the Court of Appeals is directed to remand to the trial court for a new sentencing hearing.
Spencer Lawton, Jr., District Attorney, Lori T. Loncon, Assistant District Attorney, for appellee.
Notes
1  The present indictment did not contain a recidivist count.
2  Under OCGA 16-13-32.5 (c) (2), any person who violates or conspires to violate
Caesar J. Burch, for appellant.
DECIDED JANUARY 11, 1999 -- RECONSIDERATION DENIED FEBRUARY 8, 1999.
Thursday May 21 03:08 EDT


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