Calbreath v. StateCalbreath v. State
- Reporters:
- , , ,
- Before:
- Blackburn
On May 1, 1997, Calbreath pled guilty to possession of marijuana, less than an ounce. This was Calbreath’s second conviction for such offense. Accordingly, as per our decision in
Williams v. State,
222 Ga. App. 698 (1) (475 SE2d 667) (1996), the superior court entered a felony conviction, but sentenced Calbreath “as for a misdemeanor.” Calbreath then learned that on April 29,1997, the governor had signed legislation amending
The panel which decided Williams determined that it was rightly decided. Thereafter, it was cited as authority by other panels; such cases even specifically declined to overrule the analysis contained therein. See Washington v. State, 226 Ga. App. 807 (487 SE2d 663) (1997). However, this Court has now decided a new direction must be taken. A change of opinion is often the progress of sound thought and growing knowledge. This Court is not loath to reevaluate, review, and, when applicable, change an opinion. The law deserves the respect that comes with the recognition that, upon deliberate review, an opinion is subject to correction. That respect is the bedrock of this Court. With this understanding, we will review our prior decision in Williams v. State, supra.
1. Whether an offense is a “felony offense” or a “misdemeanor offense” is determined by the maximum punishment that can be imposed for the offense. “It is what sentence can be imposed under the law, not what was imposed, that is the material consideration.” (Emphasis supplied.) United States v. Moreland, 258 U. S. 433, 441 (42 SC 368, 66 LE 700) (1922). It is “the punishment that may be *639 imposed that characterizes the crime.” (Emphasis supplied.) Ramsey v. Powell, 244 Ga. 745, 746 (262 SE2d 61) (1979). 1
In Georgia, a felony crime is defined as any crime
“punishable
by death, by imprisonment for life, or by imprisonment for more than 12 months,” while a misdemeanor crime is defined as “any crime other than a felony,” i.e.,
punishable
in a manner less than a felony crime (12 months or less). (Emphasis supplied.)
(a) Our decision in Williams relied chiefly upon this Court’s 1973 decision in Kent v. State, 129 Ga. App. 71 (198 SE2d 712) (1973), for the proposition that a felony conviction is appropriate for a second offense of possession of marijuana, less than an ounce.
In 1973, when Kent was decided, possession of marijuana was a misdemeanor only if it was: (1) less than an ounce, and (2) a first offense. At that time, the last line of the statute read, “Subsequent offenses shall be punished as provided by law.” See Ga. L. 1971, p. 271; Ga. L. 1973, p. 688. 2 In 1973, the only other punishment “provided by law” was for punishment as a felony offense. Because the accusation in Kent did not specify that the marijuana possession was a “first offense,” the crime was a felony and jurisdiction was in superior court. Accordingly, Kent’s state court conviction was properly reversed.
However, in the session after
Kent
was decided, the General Assembly specifically amended the last line of the statute to read, “Subsequent offenses . . . shall be punishable as a misdemeanor.” Ga. L. 1974, p. 267, § 3, Code § 79A-9917; see also Ga. L. 1974, p. 244, § 1, Code § 79A-811 (j). The
maximum
punishment permitted by law for a second offense of possession of marijuana, less than an ounce, was then misdemeanor punishment. Thus, a second offense became a misdemeanor. “Possession of marijuana is a felony under Code § 79A-811 (j) except, as provided under Code § 79A-9917 [now
(b) Our decision in Williams also relied upon Bass v. State, 169 Ga. App. 520 (313 SE2d 776) (1984), to hold that a defendant could be “guilty of a felony [offense],” even if he could only be “punished . . . as for a misdemeanor.”
The decision in
Bass
involved the offense of “entering auto,” which is a felony offense because it carries a maximum punishment of five years imprisonment.
In
Williams,
however, the imposition of a misdemeanor sentence was not at the judge’s discretion, but was the only sentence permitted by law. The fact that
2. Upon considered and deliberate review, we conclude that Cal-breath’s second conviction for possession of marijuana, less than an ounce, was a conviction for a misdemeanor offense. Accordingly, we will overrule Williams. 3 The trial court erred in entering judgment on a felony conviction. The instant felony judgment and, perforce, the sentence entered thereon are vacated. The case is remanded. Judgment and consequent sentence should be re-entered reflecting conviction of a misdemeanor offense. All parties are reminded that a defendant may withdraw a guilty plea as a matter of right before sentence is pronounced. Thompson v. State, 218 Ga. App. 444, 445 (462 SE2d 404) (1995).
Judgment vacated and case remanded with direction.
Andrews, C. J, McMurray, P. J., Pope, P. J., Johnson, P. J., Beasley, Smith, Ruffin, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.
Notes
See also Royster v. State, 226 Ga. App. 737 (487 SE2d 491) (1997); State v. Temple, 189 Ga. App. 284, 285 (375 SE2d 300) (1988).
Code § 79A-9917, now
The following cases are also overruled to the extent that they relied upon the Williams analysis: Washington v. State, supra; Banks v. State, 229 Ga. App. 414 (493 SE2d 923) (1997).