State v. Sampson

Court of Appeals of Georgia

State v. Sampson

417 S.E.2d 34, 203 Ga. App. 396, 49 Fulton County D. Rep. 26, 1992 Ga. App. LEXIS 432

CourtCourt of Appeals of Georgia

DecidedFebruary 25, 1992

DocketA91A1848

StatusPublished

This text of 417 S.E.2d 34 (State v. Sampson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Sampson, 417 S.E.2d 34, 203 Ga. App. 396, 49 Fulton County D. Rep. 26, 1992 Ga. App. LEXIS 432 (Ga. Ct. App. 1992).

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Opinion

Pope, Judge.

Defendant was indicted on four counts of sale of cocaine, one count of distribution of marijuana, and one count of sale of marijuana. The State gave defendant notice of its intent to seek life imprisonment pursuant to OCGA § 16-13-30 (d) and OCGA § 17-10-2, if defendant was convicted at trial of more than one count of sale of cocaine. At trial defendant was found guilty on all four counts of sale of cocaine and one count of distribution of marijuana. Although the State requested life sentences on the second, third and fourth convictions of sale of cocaine, the trial court entered concurrent six-year [397]*397sentences on the convictions. The State contends that the trial court entered a void sentence by failing to impose a life sentence for defendant’s second, third and fourth convictions on the multi-count indictment in accordance with OCGA § 16-13-30 (d) requiring that “[u]pon conviction of a second or subsequent offense [of violating OCGA § 16-13-30 (b), a defendant] shall be imprisoned for life.”

Decided February 25, 1992 Reconsideration denied March 17, 1992 Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellant. Cecilia Toole, Charles R. Sheppard, for appellee.

In State v. Sears, 202 Ga. App. 352, 354 (8) (414 SE2d 494) (1991), this court held that in order to apply the mandatory life sentence of OCGA § 16-13-30 (d), a defendant’s prior conviction must' necessarily have preceded his instant trial for violating OCGA § 16-13-30 (b). “Obviously, neither of [defendant’s] instant convictions can serve as the predicate for the imposition of a life sentence as to the other[s]. At the time that the State was required to give its pre-trial notice so as to comply with OCGA § 17-10-2 (a), [defendant’s four] instant convictions were neither final nor convictions. ‘The position adopted by the (S)tate at the sentencing hearing was that the offenses charged in the indictment for which [defendant] was on trial could be considered in determining his status as a recidivist. . . . (T)his argument . . . was clearly erroneous. (Cits.)’ [Cit.] . . . ‘The conviction must be final before it can be included in (the pre-trial notice given by the State pursuant to OCGA § 17-10-2 (a)).’ [Cit.]” Id. at 355. Thus, the concurrent six-year sentences imposed upon defendant are not void, and the State’s appeal must be dismissed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

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Pope, Judge.

Defendant was indicted on four counts of sale of cocaine, one count of distribution of marijuana, and one count of sale of marijuana. The State gave defendant notice of its intent to seek life imprisonment pursuant to OCGA § 16-13-30 (d) and OCGA § 17-10-2, if defendant was convicted at trial of more than one count of sale of cocaine. At trial defendant was found guilty on all four counts of sale of cocaine and one count of distribution of marijuana. Although the State requested life sentences on the second, third and fourth convictions of sale of cocaine, the trial court entered concurrent six-year [397]*397sentences on the convictions. The State contends that the trial court entered a void sentence by failing to impose a life sentence for defendant’s second, third and fourth convictions on the multi-count indictment in accordance with OCGA § 16-13-30 (d) requiring that “[u]pon conviction of a second or subsequent offense [of violating OCGA § 16-13-30 (b), a defendant] shall be imprisoned for life.”

Decided February 25, 1992 Reconsideration denied March 17, 1992 Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellant. Cecilia Toole, Charles R. Sheppard, for appellee.

In State v. Sears, 202 Ga. App. 352, 354 (8) (414 SE2d 494) (1991), this court held that in order to apply the mandatory life sentence of OCGA § 16-13-30 (d), a defendant’s prior conviction must' necessarily have preceded his instant trial for violating OCGA § 16-13-30 (b). “Obviously, neither of [defendant’s] instant convictions can serve as the predicate for the imposition of a life sentence as to the other[s]. At the time that the State was required to give its pre-trial notice so as to comply with OCGA § 17-10-2 (a), [defendant’s four] instant convictions were neither final nor convictions. ‘The position adopted by the (S)tate at the sentencing hearing was that the offenses charged in the indictment for which [defendant] was on trial could be considered in determining his status as a recidivist. . . . (T)his argument . . . was clearly erroneous. (Cits.)’ [Cit.] . . . ‘The conviction must be final before it can be included in (the pre-trial notice given by the State pursuant to OCGA § 17-10-2 (a)).’ [Cit.]” Id. at 355. Thus, the concurrent six-year sentences imposed upon defendant are not void, and the State’s appeal must be dismissed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

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Bluebook (online)

417 S.E.2d 34, 203 Ga. App. 396, 49 Fulton County D. Rep. 26, 1992 Ga. App. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sampson-gactapp-1992.

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