Hanson v. State

Supreme Court of Georgia

Hanson v. State

518 S.E.2d 111, 271 Ga. 145, 99 Fulton County D. Rep. 1786, 1999 Ga. LEXIS 380

Supreme Court of Georgia·Decided May 3, 1999·No. S99A0502·Published·Cited by 4 cases

Opinions

Fletcher, Presiding Justice.

Scott William Hanson was indicted for felony possession of less than one ounce of marijuana. Hanson moved to dismiss the indictment on the ground that the legislature had repealed the felony offense of possession of one ounce or less of marijuana. The trial court denied Hanson’s motion to dismiss and this Court granted certiorari after the Court of Appeals of Georgia denied Hanson’s interlocutory application to appeal.¹ Because the legislature expressly repealed the law under which Hanson is being prosecuted and did not include a savings clause, we reverse.

Hanson was arrested on March 20, 1997, for possession of less than one ounce of marijuana. Based on the court of appeals’ interpretation of OCGA § 16-13-2 (2) (b) in Williams v. State,2 Hanson was [146] indicted for felony possession. In Williams, the court of appeals held that a person who has a previous conviction for possession of one ounce or less of marijuana may not be charged with a second misdemeanor if she is arrested subsequently for possession of one ounce or less.³ Effective April 29, 1997, however, the legislature amended OCGA § 16-13-2 in order to “restore the law of this state to that which was generally understood to be the law prior to [Williams] ,”⁴ Under the amendment, possession of one ounce or less of marijuana is indictable and punishable only as a misdemeanor. Therefore, Hanson is being prosecuted for a crime that no longer exists — felony possession of less than an ounce of marijuana.

In Robinson v. State,5 this Court held that the repeal of a criminal statute abated prosecutions that had not reached a final disposition. The general assembly may prevent abatement of pending prosecutions by including a savings clause in the repealing legislation.⁶ The legislature did not include a savings clause in amending OCGA § 16-13-2. Instead, it clearly expressed its intent that possession of less than an ounce of marijuana is a misdemeanor offense.⁷ Therefore, the trial court erred in denying Hanson’s motion to dismiss the indictment against him for felony possession of less than an ounce of marijuana.

Judgment reversed.

All the Justices concur, except Hunstein, Carley and Thompson, JJ, who dissent.

Footnotes

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Fletcher, Presiding Justice.

Scott William Hanson was indicted for felony possession of less than one ounce of marijuana. Hanson moved to dismiss the indictment on the ground that the legislature had repealed the felony offense of possession of one ounce or less of marijuana. The trial court denied Hanson’s motion to dismiss and this Court granted certiorari after the Court of Appeals of Georgia denied Hanson’s interlocutory application to appeal.¹ Because the legislature expressly repealed the law under which Hanson is being prosecuted and did not include a savings clause, we reverse.

Hanson was arrested on March 20, 1997, for possession of less than one ounce of marijuana. Based on the court of appeals’ interpretation of OCGA § 16-13-2 (2) (b) in Williams v. State,2 Hanson was [146] indicted for felony possession. In Williams, the court of appeals held that a person who has a previous conviction for possession of one ounce or less of marijuana may not be charged with a second misdemeanor if she is arrested subsequently for possession of one ounce or less.³ Effective April 29, 1997, however, the legislature amended OCGA § 16-13-2 in order to “restore the law of this state to that which was generally understood to be the law prior to [Williams] ,”⁴ Under the amendment, possession of one ounce or less of marijuana is indictable and punishable only as a misdemeanor. Therefore, Hanson is being prosecuted for a crime that no longer exists — felony possession of less than an ounce of marijuana.

In Robinson v. State,5 this Court held that the repeal of a criminal statute abated prosecutions that had not reached a final disposition. The general assembly may prevent abatement of pending prosecutions by including a savings clause in the repealing legislation.⁶ The legislature did not include a savings clause in amending OCGA § 16-13-2. Instead, it clearly expressed its intent that possession of less than an ounce of marijuana is a misdemeanor offense.⁷ Therefore, the trial court erred in denying Hanson’s motion to dismiss the indictment against him for felony possession of less than an ounce of marijuana.

Judgment reversed.

All the Justices concur, except Hunstein, Carley and Thompson, JJ, who dissent.

Footnotes

Hanson v. State, 518 S.E.2d 111, 271 Ga. 145, 99 Fulton County D. Rep. 1786, 1999 Ga. LEXIS 380 (Ga. 1999).

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