*1 4-203(i) Disciplinary Board Pursuant to Bar Rule respondent’s recommended that name be accepted petition and persons practice stricken the list of allowed to law the State of from Georgia. respondent may only recommended that the
The Board further upon practice meeting be readmitted to the of law this State requirements set forth in Bar Rule 4-301 of 3 of the Rules Regulations Organization for the and Government of the State Georgia. Bar of approves adopts
This court has reviewed this file and Disciplinary recommendation of the State Board. from respondent’s
It is ordered that the name be stricken the roll state, attorneys practice respondent law in this and that allowed to may only practice upon be readmitted to the of law this state requirements as set forth in the Rules and meeting Regulations Organization Georgia. for the and Government of the State Bar of It respondent required to retake the Bar further ordered that the prior commencing any pro- Examination of this state ceedings set forth herein. All
It is so ordered. the Justices concur. Franklin, Jr., Bar, Omer W. General Counsel State Victor Alexander, Jr., Bar, Assistant General Counsel State for State Bar of Georgia. Cucich,
Fortune Daniel for Cucich. THE
36664. PRICE v. STATE. Justice.
Marshall, In this Price and a co-defendant Dr. Garfield were convicted on 150 counts of a 168-count indictment. Each count “with the offense of indictment Act” in that Georgia violation of the Controlled Substances they conspire to County “on “did un- Clayton specified date]” [a lawfully prescribe in violation of specified controlled [a substance] prescription Georgia making Controlled Substances Act specified specified the name of dated [a individual] [a date]” prescription legitimate purpose “said was made for a medical said accused I. subject requirement Herbert Garfield is to the prescriptions law governing and said date is a material allegation charge.”1 to this The date of the controlled substance, name of the to whom prescription out, made and the date prescription, vary from count count. *2 appeal,
On Appeals the Court of reversed the Price’s conviction on ground that the trial court erred to refusing sever his trial from that of co-defendant State, Garfield.2 Price v. 155 Ga. App. (1980). SE2d However, Appeals Court of rejected the appellant’s argument that his conviction of 150 counts of conspiracy to unlawfully prescribe error, controlled substances was there was granted We certiorari to review this latter ruling. shows,
The evidence concedes, and the state that there was one overall scheme between Garfield and Price under which Garfield would illegal write the prescriptions Price, and deliver them to who would use “script various runners” to fill prescriptions. The state argues that the multiple counts of the indictment charged multiple conspiracies, not general under the conspiracy statute codified (Ga. 1968, 26-3201 L. pp. 1249, 1335; amended), as § but rather special under a conspiracy statute found at of 79A-812 § (Code Controlled Substances 79A-812; Act pp. Ga. L. § 221, 244): “Any person attempts who or any to commit offense defined in this shall be punished by imprisonment not exceeding the punishment maximum prescribed offense, for the the commission of which was the object of the attempt Zant, conspiracy.”3 Hammock v. 82) (1979) SE2d material, alleges proof If the indictment the date must offense to be correspond any alleged judicata plea to the date and a res does not lie as to other date. hand, allege On the other if the indictment does not the date of the offense to be material, may alleged the defendant be convicted of the offense in the indictment on any limitations, any judicata may pleaded date within the statute of res to be State, period. App. other similar offense within such Bloodworth v. 128 Ga. 423) (1973). SE2d regard, Appeals this the Court of held that Price’s and Garfield’s defenses antagonistic, and the prejudiced denial of the motion to sever he had Price because been unable to cross examine Garfield at trial. primary conspiracy difference between the two statutes is that under § person conspiracy felony 26-3201 a convicted of criminal be to commit a cannot imprisoned period for more than one half the maximum of time for which he could conspired have been if sentenced he had been convicted of have been the crime committed; however, a convicted can be 79A-812 (holding that guilty order for one to be a under 79A-812, one or more of conspirators must act, commit an overt as 26-3201). Held: required by contemplates the commission of
It is true that when a offense, separate conspiracy more than one substantive and there are offense, each separately punishing statutes to commit may statute be separate conviction under each (4th Garner, States 574 F2d 1146-1147 authorized. United v. (5th 1978); Houltin, 1976), Cir. Cir. 525 F2d 943 1977). Houltin, States 553 F2d 991 We modified United not, however, question, do deal with this because it is uncontroverted multiple here violation of prosecution is for statute, 79A-812.
It is also true that where overt acts are committed pursuant and each overt act what is albeit offense, separate constitutes substantive State, offenses. Leverenz v. convictions for the (4) (231 513) (1976); Strauss 113 Ga. App. Ga. SE2d 367) (1966). App. question We do not deal with this either, dealing since it is the state that what we are acknowledged *3 with here under a multi-count multiple conspiracy are convictions conspiracy indictment. only
This one being appellant the the can be convicted of Act, offense in of to violate the Controlled Substances only that the conspiracy. evidence shows one principles Under in Braverman v. United enunciated 49, 53 (63 99, 87 23) (1942), U. S. LE of a object SC whether the crimes, many the agreement is to commit one or it is either case if agreement conspiracy, that constitutes the there is one agreement conspiracy. can be one 1978). Marable, 151, (5th 578 F2d Cir. “If there is one overall agreement among parties perform the various to different functions it is one carry objectives order to out the of the then conspiracy. contemplates pass If to agreement bringing that [Cit.] continuous result that will not continue without the continuous cooperation conspirators keep up, to agreement it then such constitutes a single conspiracy. And the is true same as to an [Cit.] agreement contemplates that activity repeated that the will be with, not, sometimes sometimes the same actors.” United States v. punished by imprisonment up punishment prescribed the object offense which was the 1973). 51, (5th Perez, 489 Cir. is a perversion F2d of natural “[I]t co-operation natural call thought language and of such continuous cinematographic conspiracies, series distinct rather than to call it of Palermo, a single one.” United States v. 410 F2d cit.4 v. U. S. opinion, In our Pinkerton United SC (1946), by dissent, inapposite LE relied on the is here. In of the defendants were indicted for count Revenue Code to violate the Internal of offenses the Internal Revenue Some the substantive Code. overt acts the count were the same acts constituting the substantive offenses. The Court held that under law, merged the substantive offenses were not into federal the therefore, and, separately could be punished convicted and the substantive offenses and the Thus, conspiracy to commit them. what the case involves Pinkerton offenses, of question merger subject of and on this Pinkerton is, fact, applies a rule diametrically opposed federal that to the rule 515) (1974) Crosby v. in Georgia. and cits.
Pinkerton does not hold can be on that defendant convicted indictment, if counts a multi-count evidence at trial of multiple shows commission If object conspiracy.5 offenses that are the is one this been what had show, As multi-single conspiracy these cases dichotomy presents problems variant situations. present case, In arguing the indictment contains an improper multiplication counts, the evidence shows conspiracy; and, therefore, his conspiracies convictions of cannot be double-jeopardy argument. sustained. This is a substantive Palermo, supra, Marable, cases such as United States States — asserting procedural double-jeopardy defendants were argument is, they arguing that the double-jeopardy state was barred clause from *4 bringing conspiracy prosecutions, successive the evidence showed conspiracy. Perhaps, multi-single conspiracy the argument more common is found cases Perez, such as where that claimed the improperly charged indictment proof whereas the at trial showed multiple conspiracies; and, therefore, by misjoinder prejudiced the were defendants of offenses and denial of severance. note, however, We do exemplified by Stephens cases v. United 1965) F2d 722 improper hold that an conviction on counts conspiracy indictment is harmless error where the defendant’s sentence within legal limits for conviction of a have overruled Braverman it would holding Instead, distinguished Braverman was supra. that, Braverman case ground on the Pinkerton “[i]n . . . That case is not offense charged no substantive indictment not proved charged offenses here. For the apposite S., p. 642. To as well.” 328 U. substantive offenses conspiracy but offense be convicted of a substantive a defendant could hold that conspiracy to commit only a charging an indictment the lesser an indictment for say that under offense would be offense, if offense, greater can be convicted it the defendant (see tson Wa not the law by the evidence. This is supported State, 32) State, Gardner v. (1902); Ga. 662 Ga. 607 SE State, SE Andrews v. 577) (1898); App. 55 Ga. SE 199) (1930)) and, Hall v. (1937); App. 41 Ga. SE ascertain, any it is not the law able to far as we have been CJS, Informations, 42 Indictments and jurisdiction. generally Informations, AmJur2d, 300; 313. Indictments a logical not unmindful note that we are Finally, we not charges, indictment here made that argument could be offenses with conspiracies, but committing these offenses. alleged as the method of conspiracy being hold, this court and the state its brief before not so because We do count of the position that each Appeals takes the the Court judge the trial with charges the defendant indictment jury. so Undercofler, concur, except reversed. All the Justices
Judgment J., J., participating. not Gregory, who dissents. Horn, Maloy,
Al Bruce appellant. Anderson, H. Keller, D. James Attorney, District Michael Bob Attorneys, Bradley, Assistant District appellee. Justice, dissenting.
Undercofler,
Dr.
I.
with
Herbert
conspiring
C. Price was indicted for
Jack
1980),1
to commit
(Supp.
79A-812
Garfield under
substance for other
prescribing a controlled
substantive offense of
“Any person
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(Supp.
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who
Code Ann. 79A-820
by imprisonment
punished
any
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to commit
offense
offense,
punishment prescribed
the commission
exceeding
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object
attempt or
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*5
79A-820 (Supp.
Code Ann.
purposes,
medical
under
legitimate
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§
1980).
under this
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Since Price
mechanic and
proceed
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Section,
State chose to
Code
741)
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State, Garrett v.
Compare
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(State
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766, 93
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Nissen v. United
The holds majority under Braverman 317 U. S. (1942), “if SC LE one only agreement conspiracy.” Majority there can be 60. In opinion at p. S. Pinkerton v. United 328 U. SC 90 LE (1946), Braverman, Court Supreme explained supra 642-3, case, pp. charged “the indictment no substantive offense. Each charged several counts a to violate different statute. proved. But that a single We held conspiracy . . . penalty violates but a statute greater and no provided than the conspiracy may imposed. maximum for one be charged proved here. For the offenses apposite That case is were not but substantive offenses as well.” (Emphasis supplied.) Pinkerton’s, Price’s the overt acts proved at trial amounted to substantive offenses themselves.4 “The (e), (f)and “(e) (Supp. 1980), (h) provides: Code Ann. 79A-820 A controlled dispensed substance a included Schedule V shall not be distributed other than or legitimate purpose. medical (f). person prescribe No dispensing shall or order of a controlled substance except registered practitioner who is: prescribe licensed or otherwise authorized substances; controlled (2) acting professional practice; in the usual course of his (3) prescribing ordering legitimate or such controlled substances for a medical purpose. . . (h) any practitioner It any prescription shall be unlawful to issue document signed in signed prima blank. The issuance of such in possession shall document blank facie Chapter. evidence prescription of a to violate this The of a signed by person signature appears document thereon in blank than the whose prima possessor shall be facie evidence of a between the and the signer provisions Chapter.” to violate the of this punishment (b) violating imprisonment set out in Code Ann. 79A-821 79A-820, 79A-812, and thus for violation of Code for not years more $25,000, than 5 and a fine of not more than The trial court here both. years suspended sentenced good Price to serve 10 rest with the conditional on majority opinion, behavior. penalty years. Under the would be 5 Price, We also directly note that like Daniel Pinkerton had not himself committed the charged. substantive offenses for which he was
question was jury submitted to the on theory petitioner that each could guilty be found offenses, the substantive if it was found at the time those offenses were committed petitioners parties were to an unlawful and the substantive offenses ” fact committed in furtherance of it. (Emphasis supplied.) A review of the record in Price’s case clearly reveals that evidence of the actual *6 commission of the substantive offenses presented to the jury.
Under the authority I would hold that Price may separately convicted for all of the which 150 counts proves conspired that he to commit and that were in fact commit- ted.
36670. BROWN v. HIGGINS. Judgment opinion affirmed without pursuant to Rule 59. All the Justices concur. Jordan, Jordan,
Jordan & Hill appellant. Joseph Jr., E. Cheeley, Joseph Cheeley, III, E. appellee. 37172, 37173. DEVELOPMENT AUTHORITY OF DeKALB
COUNTY v. BEVERLY ENTERPRISES; and vice versa. Justice. Gregory, IX, VIII,
Article Section Paragraph II of Con- (Code 2-6502) stitution provides: development trade, “The commerce, industry and em- ployment opportunities hereby public to be a purpose declared vital to the welfare of the people of this Assembly State. The General may Development create promote Authorities and further such purposes may authorize the creation Authority by any of such an county or municipal corporation ... may necessary. as it deem General Assembly may exempt from Development taxation Authority obligations, properties, activities or income and authorize the issuance of Obligations by Revenue such Authorities which shall not constitute an indebtedness of the State within the meaning of Section VII of this Article 2-6401 through [§§ 2-6404].”