Smiley v. State

Court of Appeals of Georgia

Smiley v. State

527 S.E.2d 585, 241 Ga. App. 712, 2000 Fulton County D. Rep. 480, 2000 Ga. App. LEXIS 4

Court of Appeals of Georgia·Decided January 5, 2000·No. A99A2337·Published·Cited by 3 cases

Opinion

Barnes, Judge.

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 con[713] viction 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.

Decided January 5, 2000. Luz F. Cloy, for appellant. Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

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Barnes, Judge.

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 con[713] viction 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.

Decided January 5, 2000. Luz F. Cloy, for appellant. Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

Smiley v. State, 527 S.E.2d 585, 241 Ga. App. 712, 2000 Fulton County D. Rep. 480, 2000 Ga. App. LEXIS 4 (Ga. Ct. App. 2000).

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