O.C.G.A. § 16-13-30.1 (2019)

Annotations

Editor’s notes. Ga. L. 1991, p. 886, § 4, not codified by the General Assembly, provides: “(a) The repeal, or repeal and reenactment, of the provisions of Code Section 16-13-49 by this Act shall not abate any cause of action which arose at any previous time under the provisions of said Code section prior to the effective date of this Act. Furthermore, no action for forfeiture shall be abated as a result of the provisions of this Act, and any and every such action or cause of action shall continue, subject only to the applicable statute of limitations. “(b) No property shall be subject to forfeiture pursuant to this Act where the act or omission which makes such prop-

erty subject to forfeiture occurred prior to the effective date of this Act unless such property was subject to forfeiture under the laws of this state at the time such act or omission occurred.” Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: “This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure.” Law reviews. For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 1 (2015).

JUDICIAL DECISIONS Penalty provision held constitutional. - O.C.G.A. § 16-13-30.1, which subjects a defendant to a greater penalty for the sale of a non-controlled substance than for the sale of some controlled substances, does not violate due process. Thompson v. State, 254 Ga. 393, 330 S.E.2d 348, 1985 Ga. LEXIS 731 (1985). Applicability. - Defendant was erroneously convicted of felony selling a non-controlled substance under O.C.G.A. § 16-13-30.1(a)(1)(A) where the subject conduct also violated O.C.G.A. § 16-13-30.2, which makes it a

misdemeanor to possess or distribute an “imitation controlled substance”; the state improperly prosecuted defendant for violating the statute with the greater penalty rather than the one with the lesser penalty. Brown v. State, 276 Ga. 606, 581 S.E.2d 35, 2003 Ga. LEXIS 481 (2003). O.C.G.A. § 16-13-30.2 is not a lesser included offense. - O.C.G.A. § 16-13-30.2 cannot be considered a lesser included crime of O.C.G.A. § 16-13-30.1 under the required evidence test because the plain language of § 16-13-30.2 requires proof of a fact not required for a

conviction under § 16-13-30.1. State v. Burgess, 263 Ga. 143, 429 S.E.2d 252, 1993 Ga. LEXIS 394 (1993). Not included offense of sale of controlled substance. - Offense of unlawfully selling a noncontrolled substance while representing the substance to be a controlled substance (O.C.G.A. § 16-13-30.1) is not included in the offense of conspiracy to sell or distribute cocaine (O.C.G.A. § 16-13-30). Smith v. State, 202 Ga. App. 664, 415 S.E.2d 481, 1992 Ga. App. LEXIS 149 (1992). Jurors may use experience to determine whether drug was represented. - Jury properly concluded, based on their common sense and the ordinary test of human experiences, that $20 is “substantially in excess of” the “reasonable value” of an ordinary pebble such as one might pick up off the ground and that the appearance of the noncontrolled substance was so “substantially identical” to that of rock cocaine that an undercover agent whose assignment was to purchase actual cocaine bought it. Billups v. State, 206 Ga. App. 91, 424 S.E.2d 355, 1992 Ga. App. LEXIS 1427 (1992). Conviction was relevant under U.S. Sentencing Guidelines. - Unpublished decision: When a defendant appealed a 72-month sentence for violating 18 U.S.C. § 922(g)(1), which was enhanced pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2), the defendant’s argument was foreclosed that the defendant’s non-controlled substance conviction under O.C.G.A. § 16-13-30.1(a)(1) was not a controlled substance offense under U.S. Sentencing Guidelines Manual § 4B1.2(b). United States v. James, 712 Fed. Appx. 838, 2017 U.S. App. LEXIS 20259 (11th Cir. 2017). Rule of lenity did not apply to a defendant’s conviction of felony possession with intent to distribute a noncontrolled substance, O.C.G.A. § 16-13-30.1, because the evidence did not show that the substance at issue was an “imitation controlled substance” for purposes of misdemeanor unlawful manufacture, distribution, or possession with intent to distribute of imitation controlled

substances, O.C.G.A. § 16-13-30.2; although the noncontrolled substance at issue was in common packaging for narcotics, the evidence did not show that it appeared as a “dosage unit” based on color, shape, size, or markings or was specifically designed or manufactured to resemble a controlled substance. Therefore, the evidence failed to establish that the defendant’s conduct fell within § 16-13-30.2(a). Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252, 2009 Ga. App. LEXIS 279 (2009). Rule of lenity did not apply to conviction for imitation controlled substances. - Trial court did not err by refusing to apply the rule of lenity with regard to a defendant’s conviction for selling a counterfeit substance because the evidence revealed that the substance would not fall under either definition of “imitation controlled substance” set forth in O.C.G.A. § 16-13-21(12.1)(A) as the parties stipulated only that the substance recovered was not a controlled substance and there was no evidence presented that it was specifically designed or manufactured to resemble the physical appearance of a controlled substance. As a result, the rule of lenity did not apply, and the trial court properly sentenced the defendant for a felony. Chandler v. State, 294 Ga. App. 27, 668 S.E.2d 510, 2008 Ga. App. LEXIS 1099 (2008). Evidence sufficient to support conviction. - Evidence was sufficient to support a defendant’s convictions under O.C.G.A. § 16-13-30.1 for possessing with intent to distribute a substance represented to be cocaine and possessing with intent to distribute a substance represented to be methamphetamine because, although the defendant argued that the defendant was merely a backseat passenger in a vehicle involved in the underlying transaction who was not shown to be in either actual or constructive possession of the substance at issue, evidence established that the defendant negotiated to sell to an agent a substance expressly represented to be cocaine and a substance expressly represented to be methamphetamine; this material was in the car with the defendant, who handed the material to a

third person who was to deliver the substance to the agent, and, the claim that the defendant acted innocently was refuted by the third person’s testimony that the third person and the defendant knew what was going on and that the third person called the defendant to ask

about drugs in connection with this transaction. Any rational trier of fact could have concluded beyond a reasonable doubt that the defendant was a party to the crimes. Diaz v. State, 296 Ga. App. 589, 676 S.E.2d 252, 2009 Ga. App. LEXIS 279 (2009).

RESEARCH REFERENCES ALR. Admissibility, in criminal prosecution, of expert opinion allegedly stating

whether drugs were possessed with intent to distribute - state cases, 83 A.L.R.4th 629.