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
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.