Morgan v. StateMorgan v. State
- Reporters:
- , ,
- Before:
- Pope
During the August 1982 term of Barrow Superior Court, appellant was indicted for violation of the Georgia Controlled Substances Act. This indictment (number 19579) charged appellant with one count of possession of marijuana and one count of possession of 3, 4-methylenedioxy-amphetamine (MDA). Both possession charges arose out of a search of appellant’s residence on February 20, 1982. Appellant entered a plea of guilty which was accepted on October 15,1982, and he was sentenсed to six years probation and a *311 $2,000 fine.
In Barrow County on February 7, 1983, аppellant was charged on two separate indictments for the sale of MDA. Indictment number 20017 charged appellant with the sale of MDA on February 13,1982, and indictment number 20018 with the sale of MDA on Februаry 19, 1982. Appellant appeals the denial of his pleas of autrefois convict and of double jeopardy pursuant tо Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). 1
1. Appellant contends that his plea to indictment number 19579 was а negotiated plea of guilty to all pending charges and, thus, acts as res judicata to all offenses occurring during the samе time. However, on the date his guilty plea was acceрted to the two counts of possession of marijuana and MDA contained in indictment number 19579, the record reveals no other pending chargеs against him. The two indictments charging the sale of MDA were subsequently hаnded down on February 7, 1983.
2. Appellant further seeks to bolster his doublе jeopardy assertion by characterizing as similar the offеnses charged in all three indictments and by stressing that all three allegedly occurred within a time span of one week. In this manner, appellant apparently hopes to convince this court that the crimes charged in all three indictments involved the same conduct so as to bar prosecution on the latter two indictments pursuant to
In order for conduct to constitute the same transaction, it must be identical both as a matter of fact and as a matter of law.
Hiatt v. State,
133 Ga. App. 111, 113 (210 SE2d 22) (1974), and cits. At the outset, we note that
possession
of an illegal drug is a crime sepаrate and distinct from the illegal
sale
of that same substance. See
State v. Estevez,
232 Ga. 316 (1) (206 SE2d 475) (1974). This is especially true as a matter of law and of fact where, as here, the illegal possession counts in indictment number 19579 stemmed from a search and seizure performed on February 20,1982, and the dates of the alleged sаles of MDA were stated on indictment numbers 20017 and 20018 as February 13,1982 and Februаry 19,1982 respectively. On these facts, we do not agree that there was one transaction involved and that the possessiоn arose out of the same conduct. Cf.
Mann v. State,
160 Ga.
*312
App. 527 (287 SE2d 325) (1981);
State v. Gilder,
145 Ga. App. 731 (245 SE2d 3) (1978). Moreover, it is obvious that in order for the state to prove each designated illegal
sale
of MDA, each prosecution will require proof оf a fact not required on the prior prosecution for
possession
of the illegal substances. See
Judgment affirmed.
Quillian, P. J., and Sognier, J., concur.
Notes
We note that thе notice of appeal in the present case was filed on February 25, 1983 prior to the entry of the order of the trial сourt on March 7,1983. Under the opinion of the Supreme Court in Cunningham v. State, 232 Ga. 416 (207 SE2d 48) (1974), howеver, this does not constitute a basis for dismissal of this criminal appeal.