Brown v. State, 420 S.E.2d 823

420 S.E.2d 823 | Ga. Ct. App. | 1992

McMurray, Presiding Judge.

Pursuant to a multi-count indictment, defendant was charged with selling cocaine, in violation of OCGA § 16-13-30 (b), on four occasions. Although defendant had not been convicted previously of violating OCGA § 16-13-30 (b), the State gave defendant pre-trial notice that it would seek a life sentence pursuant to OCGA § 16-13-30 (d) “in the event of a conviction on a second count of Sale of Cocaine. . . .” Defendant was convicted upon all four counts of the indictment and the trial court imposed life sentences upon the second, third and fourth counts. Defendant appeals, contending the trial court erred in imposing life sentences pursuant to OCGA § 16-13-30 (d) in the absence of a prior conviction for a violation of OCGA § 16-13-30 (b). Held:

Decided July 2, 1992. Charles C. Mayers, for appellant. Michael C. Eubanks, District Attorney, J. Wade Padgett, Richard E. Thomas, Assistant District Attorneys, for appellee.

This case is controlled by State v. Sears, 202 Ga. App. 352, 354 (8) (414 SE2d 494), in which this Court held that in order for the imposition of a life sentence to be mandatory pursuant to OCGA § 16-13-30 (d), a defendant must have been convicted of violating OCGA § 16-13-30 (b) prior to his instant trial for violating OCGA § 16-13-30 (b). It follows that the trial court erred in imposing life sentences upon counts two, three and four of the indictment and defendant must be resentenced.

Judgment reversed as to sentences upon Counts 2, 3 and 4.

Sognier, C. J., and Cooper, J., concur.