O.C.G.A. § 16-13-26 (2019)

Annotations

Law reviews. For note on airport searches of drug couriers, see 33 Mercer L. Rev. 433 (1981). For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article on the 2017 amendment of this Code section, see 34 Georgia St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017).

JUDICIAL DECISIONS Construed with O.C.G.A. §§ 16-13-30 and 16-13-31. - When the total weight of the substances seized from defendant was only 24.4 grams of cocaine, defendant argued that the only Georgia statute that proscribes possession of cocaine is O.C.G.A. § 16-13-31, prohibiting possession of 28 grams or more of cocaine. However, although

O.C.G.A. § 16-13-31 deals with being in knowing, actual possession of 28 grams or more of cocaine or any mixture containing cocaine, O.C.G.A. § 16-13-26(1)(D) (prior to 1988 amendment inserting “cocaine”) lists “Coca leaves, any salt, compound, derivative, stereoisomers of cocaine, or preparation of coca leaves, and any salt, compound, derivative, stereoisomers of

cocaine, . . . ,” which includes cocaine. Under O.C.G.A. § 16-13-30, the unlawful possession of any controlled substance, regardless of amount, constitutes an offense. Dixon v. State, 180 Ga. App. 222, 348 S.E.2d 742, 1986 Ga. App. LEXIS 2685 (1986) (decided prior to 1988 amendment inserting “cocaine” at the beginning of paragraph (1)(D)). Methylphenidate possessor’s ex post facto argument rejected. - Methylphenidate has been a Schedule II controlled substance since 1974. Accordingly, the contention that defendant was sentenced for an ex post facto crime has no merit where defendant’s arrest warrant stated the date of possession of methylphenidate to have been on or about July 25, 1985. Carter v. State, 180 Ga. App. 173, 348 S.E.2d 715, 1986 Ga. App. LEXIS 2690 (1986). Simultaneous possession of different proscribed drugs may result in multiple punishments. Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908, 1977 Ga. App. LEXIS 2638 (1977). Multiple offenses arising from simultaneous possession of drugs of same category. - Multiple offenses can be charged when drugs of same category (i.e., Schedule II) are taken from one person at same time and place. Howard v. State, 144 Ga. App. 208, 240 S.E.2d 908, 1977 Ga. App. LEXIS 2638 (1977). Defendant may be prosecuted, convicted, and separately sentenced for the simultaneous possession of each of the controlled substances listed in O.C.G.A. § 16-13-26. Tabb v. State, 250 Ga. 317, 297 S.E.2d 227, 1982 Ga. LEXIS 1235 (1982). Controlled substance. - Cocaine was a controlled substance pursuant to O.C.G.A. § 16-13-26(1)(D), and thus defendant could be convicted both for selling a controlled substance and distributing a controlled substance within 1,000 feet of a housing project after defendant sold cocaine to an undercover informant. Dixon v. State, 252 Ga. App. 385, 556 S.E.2d 480, 2001 Ga. App. LEXIS 1289 (2001). Sufficient evidence supported defendant’s conviction of possession of cocaine

under O.C.G.A. § 16-13-30(a) as: (1) the informant testified that defendant procured crack cocaine for the informant for $300.00; (2) detectives witnessed defendant enter and exit the bar where, according to the informant, defendant obtained the cocaine; and (3) the substance tested positive for cocaine, a controlled substance under O.C.G.A. § 16-13-26(1)(D); the credibility of the informant, which, according to the defendant, was allegedly impaired by the informant’s prior criminal conduct, was an issue for the jury. Ross v. State, 275 Ga. App. 137, 619 S.E.2d 809, 2005 Ga. App. LEXIS 905 (2005). Evidence sufficient to support conviction of sale of methamphetamine. - Evidence that a defendant sold an undercover officer methamphetamine on two occasions, with one sale of more than 28 grams, and that the defendant participated in a later, larger drug deal, supported the defendant’s convictions for trafficking in methamphetamine, O.C.G.A. § 16-13-31(e), and sale of methamphetamine under O.C.G.A. §§ 16-13-26(3)(B) and 16-13-30(b). Culajay v. State, 309 Ga. App. 631, 710 S.E.2d 846, 2011 Ga. App. LEXIS 420 (2011). Proper admission of similar transaction evidence. - Trial court did not abuse the court’s discretion by allowing the admission of evidence regarding the defendant’s prior drug possession arrest because the evidence of prior drug activity was highly probative of intent to sell a controlled substance for which the defendant was on trial and the prior act of drug possession happened while the defendant was driving a car in the same area where the sale of the methamphetamine during the first buy occurred. Moton v. State, 351 Ga. App. 789, 833 S.E.2d 171, 2019 Ga. App. LEXIS 488 (2019). Prior out-of-state drug convictions used to impose recidivist sentence. - Defense counsel was not ineffective for failing to object to the trial court’s use of prior felonies defendant committed in California to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(c) as

the elements of Cal. Health & Safety Code §§ 11054(f) and 11350(a) (possession of cocaine) were sufficiently similar to those of O.C.G.A. §§ 16-13-26(1)(D) and 16-13-30(c); and the elements of Cal. Penal. Code § 211 (robbery) were sufficiently similar to those of O.C.G.A. § 16-8-40. Williams v. State, 296 Ga. App. 270, 674 S.E.2d 115, 2009 Ga. App. LEXIS 189 (2009). Remand for sentencing required. - Because it was unclear which schedule,

which Code section, and which sentencing range would apply to the substances the defendant pled guilty to selling, the defendant’s sentences had to be vacated and the case remanded to the trial court for a hearing to determine on which schedule the controlled substances at issue belonged, and to impose a lawful and appropriate sentence. Williams v. State, 320 Ga. App. 243, 739 S.E.2d 727, 2013 Ga. App. LEXIS 159 (2013).

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Drugs and Controlled Substances, § 10. C.J.S. 28 C.J.S., Drugs and Narcotics, § 219.

U.L.A. Uniform Controlled Substances Act (U.L.A.) § 206.