CopyCited 19 times | Published | Supreme Court of Georgia | Jan 11, 1999 | 270 Ga. 467, 99 Fulton County D. Rep. 255
...Atty., Lori Tepper Loncon, Asst. Dist. Atty., Savannah, for the State. THOMPSON, Justice. We granted certiorari to the Court of Appeals in Mikell v. State,
231 Ga.App. 85,
498 S.E.2d 531 (1998), to determine whether a trial court must exercise discretion under OCGA §
16-13-32.5(c)(2) in sentencing a defendant for a second or subsequent violation of OCGA §
16-13-32.5(b) (distributing a controlled substance within 1,000 feet of a public housing project). We answer in the affirmative. Mikell was charged and convicted of violating OCGA §
16-13-32.5(b), as well as OCGA §
16-13-30(b) (selling a controlled substance), and OCGA §
16-10-24 (obstructing a police officer by resisting arrest). He had one prior conviction for possession with intent to distribute a controlled substance (OCGA §
16-13-30(b)), and one prior conviction for possession with intent to distribute cocaine within 1,000 feet of a public housing project (OCGA §
16-13-32.5(b))....
...Mikell under the general recidivist statute, OCGA §
17-10-7(a). [1] During the sentencing hearing, the State urged that the trial court was required to apply the recidivist sentencing provision of OCGA §
17-10-7(a) to the second violation of OCGA §
16-13-32.5(b) and sentence Mikell to the maximum amount of time prescribedimprisonment for 40 years, to run consecutively....
...The court agreed and sentenced Mikell to life imprisonment for the sale of a controlled substance; 40 years for distribution within 1,000 feet of a public housing project, to run consecutively; and 12 months for obstruction, to run concurrently. OCGA §
16-13-32.5(c)(2) [2] contains a separate provision setting forth the mandatory range of punishment for "a second or subsequent conviction" under OCGA §
16-13-32.5(b)....
...Instead, the court was authorized to exercise discretion under subsection (c)(2) and impose a consecutive sentence of five to forty years in prison. We reject the State's assertion that the general recidivist statute, OCGA §
17-10-7, overrides the sentencing provisions of OCGA §
16-13-32.5(c)(2). The initial rule of statutory construction is to look to the legislative intent and to construe statutes to effectuate that intent. OCGA §
1-3-1(a). The uncodified preamble to OCGA §
16-13-32.5, at Ga....
...As explained by the sponsor of the legislation, the bill was proposed at the request of constituents who demanded tougher drug laws because of the potential impact of drugs on their children. 9 Ga.St.L.Rev. 212, 213 (1992). The plain language of OCGA §
16-13-32.5 effectuates the stated legislative intent....
...ons of OCGA §
17-10-7). Even assuming arguendo that the two statutes may be in conflict, the more recent legislative expression prevails. Jenkins v. State,
265 Ga. 539(1),
458 S.E.2d 477 (1995). We hold that the trial court is authorized under OCGA §
16-13-32.5(c)(2) to exercise discretion in sentencing a repeat offender to a term of imprisonment within the statutory range, and is not bound by the provisions of OCGA §
17-10-7. Accordingly, the Court of Appeals is directed to remand to the trial court for a new sentencing hearing. Judgment reversed. All the Justices concur. NOTES [1] The present indictment did not contain a recidivist count. [2] Under OCGA §
16-13-32.5(c)(2), any person who violates or conspires to violate OCGA §
16-13-32.5(a) or (b), shall be punished as follows: "Upon a second or subsequent conviction, imprisonment for not less than five years nor more than 40 years or a fine of not more than $40,000, or both....
CopyCited 13 times | Published | Supreme Court of Georgia | Jun 1, 2022
...B.
with aggravated assault on a peace officer, see OCGA §
16-5-21,
aggravated battery, see OCGA §
16-5-24, two counts of obstruction
of an officer, see OCGA §
16-10-24 (b), possession of less than an
ounce of marijuana, see OCGA §
16-13-30 (j), two counts of
possession of drug-related objects, see OCGA §
16-13-32.2, and two
counts of criminal trespass, see OCGA §
16-7-21 (a) and (b).
Following a detention hearing, the juvenile court ordered that
T....
CopyCited 11 times | Published | Supreme Court of Georgia | Nov 20, 2006 | 281 Ga. 310, 2006 Fulton County D. Rep. 3600
...10-7 if subsection (e) did not otherwise require the general recidivist statute to prevail over the specific recidivist statute. Contrary to Butler's argument, nothing in Mann or Mikell v. State,
270 Ga. 467,
510 S.E.2d 523 (1999) (interpreting OCGA §
16-13-32.5(c)(2) *691 in light of OCGA §
17-10-7) compels a different result....
CopyCited 7 times | Published | Supreme Court of Georgia | Jun 3, 2019 | 306 Ga. 50
...seeking such medical assistance." OCGA §
16-13-5 (b). The statute defines "drug violation" as the possession of marijuana or a controlled substance in violation of OCGA §
16-13-30 or the possession or use of drug paraphernalia in violation of OCGA §
16-13-32.2.
At the hearing, Williams's counsel briefly mentioned the motion to dismiss the felony murder charge on constitutional grounds, saying that it was a "secondary issue." Counsel made no arguments in support of that motion, however, in the hearing or the post-hearing briefs....
CopyCited 7 times | Published | Supreme Court of Georgia | Mar 9, 2009 | 285 Ga. 103, 2009 Fulton County D. Rep. 792
...Following a jury trial, Jerry Tidwell was found guilty of possession of methamphetamine with intent to distribute, possession of marijuana, and possession of drug-related objects. On appeal, Tidwell contends that the *273 trial court erred in denying his motion to suppress, and in finding that OCGA §
16-13-32.2 (possession of drug-related objects) is constitutional....
...d that "the [duffle] bag is mine, but not the dope." The white powder discovered by McCarron was subsequently determined to be methamphetamine. Tidwell was arrested, and on March 26, 2007, he filed a motion to challenge the constitutionality of OCGA §
16-13-32.2 (possession of drug-related objects)....
...776,
5 L.Ed.2d 828 (1961) (landlord did not have authority to consent to search of house he had rented to another). Therefore, the trial court erred in denying Tidwell's motion to suppress. See id. 2. Tidwell argues that the trial court erred in finding OCGA §
16-13-32.2 to be constitutional....
CopyCited 7 times | Published | Supreme Court of Georgia | Nov 21, 2005 | 622 S.E.2d 823, 2005 Fulton County D. Rep. 3510
...or using the phone to arrange for the delivery of cocaine. Although under step 1 concurrent jurisdiction exists in Georgia for the prosecution of the defendant for the crimes of using the phone to arrange either the murder or the drug crime, see OCGA§
16-13-32.3 (a); Division 2, infra, under step 2 of the statutory analysis the former prosecution for the murder-based crime was not for the same conduct as the State’s cocaine-based crime....
...e the commission of any act constituting murder.
It is a crime in Georgia to use a telephone to commit or facilitate the commission of a felony, but only for those felonies involving controlled substances under Chapter 13 of our Criminal Code. OCGA §
16-13-32.3 (a) provides that the use of a “communication facility,” e.g., a telephone,8 is a crime when the phone is used “in committing or in causing or facilitating the commission of any act or acts constituting a felony under [Chapter 13].” Under OCGA §
16-13-32.3 (a) an individual can be prosecuted for each separate use of a telephone to arrange for illegal drugs to be sold, purchased, or transported, among other crimes, notwithstanding the fact that the individual may also be criminally liable for actually selling, purchasing or transporting the drugs....
...calls to purchase cocaine). As these cases demonstrate, the use of a telephone or other communication facility to facilitate a drug felony is a crime in and of itself, separate and distinct from the felonies the telephone is used to facilitate. OCGA §
16-13-32.3 thus serves to rebut Sullivan’s and the dissent’s argument that the statutory language in 18 USC § 1952A setting forth the “method” in which the murder is facilitated is an extraneous jurisdictional element that should not be used to “set apart” the crime for double jeopardy purposes.9
Although the Legislature enacted OCGA §
16-13-32.3 as the Georgia counterpart to 21 USC § 843 (b), the Federal crime of using a telephone to arrange for the commission of a drug crime, see Hunt v....
...& Mary Bill of Rts. J. 1349 (2005).
We note that the record fails to contain a certified copy of Sullivan’s Federal prosecution, but the State raised no objection and has affirmatively acknowledged the facts surrounding that earlier prosecution.
OCGA §
16-13-32.3 (a) defines “communication facility solely for purposes of that Code section as “any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, computer or computer network, and all other means of communication.”
The dissent completely ignores the Legislature’s enactment of OCGA §
16-13-32.3 (a), and in light of that statute it is difficult to fathom the dissent’s claim that the Legislature “would never enact” a statutory counterpart to 18 USC § 1952A to make it a crime in Georgia to use a telephone or other communic...
CopyCited 2 times | Published | Supreme Court of Georgia | Oct 7, 2019
...THE STATE.
ELLINGTON, Justice.
Following a jury trial, Charles Lee Pennington and Jay Harlan
Briele were found guilty of possessing with intent to distribute
methamphetamine within 1,000 feet of an elementary school, in
violation of OCGA §
16-13-32.4 (a).1 At trial, Pennington and Briele
requested that the jury be instructed on an affirmative defense
provided in the Georgia Controlled Substances Act,2 specifically,
1 OCGA §
16-13-32.4 (a) provides:
It shall be unlawful for any person to manufacture,
distribute, dispense, or possess with intent to distribute a
controlled substance or marijuana in, on, or within 1,000 feet of
any real pr...
...586, 587-588 (1) (816 SE2d 762) (2018). In
his direct appeal, Pennington also unsuccessfully challenged the striking of a
prospective juror. Id. at 588-591 (2). Neither of these holdings is before this
Court.
2 OCGA §
16-13-20 et seq.
that the conduct prohibited by OCGA §
16-13-32.4 (a) took place
entirely within a private residence, that no minors were present in
the residence at any time during the commission of the offense, and
that the prohibited conduct was not carried on for financial gain....
...neither of whom testified at trial, did not admit doing the act
charged, that is, possessing with intent to distribute
methamphetamine, and because neither the State nor either
defendant presented any evidence that the “active meth lab”4 in
3 OCGA §
16-13-32.4 (g) provides:
It is an affirmative defense to prosecution for a violation of
this Code section that the prohibited conduct took place entirely
within a private residence, that no person 17 years of age or...
...evidence raises the issue. Id. at 863.
It follows from our holdings in McClure that the Court of
Appeals erred in affirming the trial court’s denial of Pennington’s
request for a jury instruction on the affirmative defense set out in
OCGA §
16-13-32.4 (g) solely on the basis that Pennington did not
admit that he possessed with intent to distribute methamphetamine
4
near a school....
Published | Supreme Court of Georgia | Nov 18, 2025
...And now, at the hearing
the majority says must occur, the trial court can revoke
Greathouse’s first offender status, which has not yet been done, and
impose the maximum sentence for his two offenses. See OCGA § 42-
8-16(d). See also OCGA §§
16-13-30(c)(2) and
16-13-32.2(b).
19
Because the trial court held a hearing that afforded
Greathouse an opportunity to address his probation violations,
arguably satisfying the provisions of OCGA §
42-8-34.1(b); because
I bel...
CopyPublished | Supreme Court of Georgia | Jun 3, 2019
...g such medical assistance.” OCGA §
16-13-5 (b). The statute defines “drug violation” as the possession of marijuana
or a controlled substance in violation of OCGA §
16-13-30 or the possession or
use of drug paraphernalia in violation of OCGA §
16-13-32.2.
4 At the hearing, Williams’s counsel briefly mentioned the motion to
dismiss the felony murder charge on constitutional grounds, saying that it was
evidence shows that, on the evening of October 21, 2015, Williams,
Ivey, and two other individuals met at a house in Alpharetta....
