Billingslea v. State

341 S.E.2d 305, 177 Ga. App. 775, 1986 Ga. App. LEXIS 1540

• Court: Court of Appeals of Georgia
• Decided: February 11, 1986
• Docket: 71927
• Status: Published

Opinion

Birdsong, Presiding Judge.

Grady Billingslea was indicted and convicted in Troup County State Court for driving under the influence (DUI). The defendant moved to dismiss on grounds that the state court, which has jurisdiction of misdemeanors, did not have jurisdiction since DUI is a felony, one year being the maximum punishment for the offense under OCGA § 40-6-391. After conviction and post-trial proceedings, Billingslea appeals. Held:

OCGA § 40-6-391 (c) provides that persons convicted of DUI shall be guilty of a misdemeanor. Notwithstanding this clear pronouncement, appellant contends the offense is a felony because the maximum prison sentence that may be imposed is one year, whereas under OCGA § 17-10-3 misdemeanors are by law punished by a maximum sentence of “twelve months.” OCGA § 17-10-3 (a) provides: “Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished: . . . [by confinement not to exceed 12 months].” Appellant contends and infers from various authorities that the sentence required by § 40-6-391, a maximum of one year, is a term which in this state exclusively connotes a felony offense; but this code section proves that contention to be wrong, since it gives the maximum sentence of “one year” and expressly provides the offense as a misdemeanor. No ground exists as claimed to reverse the judgment of the trial court.

Decided February 11, 1986. Hoke J. Thomas, Jr., for appellant. Robert B. Whatley, Solicitor, for appellee.

Judgment affirmed.

Banke, C. J., and Sognier, J., concur.