lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
SMILEY v. THE STATE.
A99A2337.
BARNES, Judge.
Drug violation. Glynn Superior Court. Before Judge Tuten.
David Smiley was convicted of cocaine possession under OCGA 16-13-30 (a) and appeals his sentence of 30 years imposed under OCGA 16-13-30 (c) and the recidivism statute, OCGA 17-10-7. Smiley argues that his previous conviction for cocaine possession with the intent to distribute was not a previous conviction for cocaine possession and, therefore, he should not have been sentenced for a second offense of cocaine possession under OCGA 16-13-30 (c). We disagree and affirm.
We have held that a conviction for trafficking in cocaine under OCGA 16-13-31 constitutes a second violation of possession with intent to distribute cocaine under OCGA 16-13-30 (b), triggering the mandatory life sentence required by OCGA 16-13-30 (d). Gilbert v. State, 208 Ga. App. 258, 260 (1) (430 SE2d 391) (1993). In that case, we said:
To conclude that Gilbert's prior conviction under OCGA 16-13-31 does not trigger the recidivist provisions of OCGA 16-13-30 (d) would lead to an illogical result since Gilbert's first conviction was for a more serious version of the offenses outlined in OCGA 16-13-30 (b). It appears that OCGA 16-13-30 (b) was a lesser included offense of Gilbert's conviction under OCGA 16-13-31.
Id. Accord Brundage v. State, 231 Ga. App. 478, 480 (4) (499 SE2d 408) (1998); Cody v. State, 222 Ga. App. 468, 471 (4) (474 SE2d 669) (1996).
A similarly illogical result would apply here if Smiley's previous conviction for possession with intent to distribute did not equal a conviction of simple possession that triggered the mandatory 30-year sentencing for a second simple possession offense under OCGA 16-13-30 (c). Simple possession is a lesser included offense of possession with the intent to distribute. See Burse v. State, 232 Ga. App. 729, 731 (2) (503 SE2d 638) (1998); Howard v. State, 220 Ga. App. 579, 583 (2) (469 SE2d 746) (1996). We find no error in Smiley's sentence.
Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee.
Luz F. Cloy, for appellant.
DECIDED JANUARY 5, 2000.
Thursday May 21 02:09 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com