In one indictment appellee/cross-appellant Shuman was charged with possession and sale of controlled substances on October *305 2, 1979, and recidivism. A second indictment charged Shuman with possession of marijuana and controlled substances on June 12,1980. After thе two indictments were consolidated and a trial was had, appellee was convicted of the October 2 charge and аcquitted of the June 12 possession charges. Shuman was sentenced to serve five years, and the state’s appeal followed the trial court’s denial of the state’s motion to amend the sentence. In the cross-appeal, Shuman seeks reversal of thе denial of his motion for a new trial, asserting that he was denied the effective assistance of counsel.
1. In his appeal, Shuman аsserts that his trial counsel was ineffective and cites several purported examples of the alleged ineffectiveness. We must point out that counsel 'no\y attacked as ineffective succeeded in having the jury acquit the defendant of two of the three charges against him. In light of this, we will not consider those allegations of ineffectiveness which concern the charges of which appellant was acquitted.
In
Pitts v. Glass,
2. Consolidation for trial of two indictments charging separate and distinct offenses is not
per se
ineffective assistance of counsel. The cases may be tried jointly with the consent of the defendant.
Bradford v. State,
3. Shuman asserts that damaging character and hearsay evidence was admitted into evidence at trial with no objeсtion from his trial attorney. Four of appellant’s seven examples are based upon testimony introduced with respect to thе charges of which appellant was acquitted and therefore will not be considered by this court. The remaining instances of the alleged placement of the defendant’s character into evidence concern a defense counsel query abоut the defendant’s probation officer, a remark of the defendant’s about his probation officer, and the defendant’s acknowledgment on cross- *306 examination that he had previously possessed quaaludes.
Since previous possession of quaaludes is not necessarily criminal conduct, appellant’s admission of such conduct will not place his character into evidence. Secondly, appellant cannot now complain that his answers to questions constituted ineffectiveness on his attorney’s part. Finally, the propounding of an incomplete improper question to a witness is not grounds for reversal or a finding of ineffectiveness, and the trial court’s cutting short of the question diminished whatever prеjudicial effect the incomplete question may have had on the jury. See
Bell v. State,
4. Defendant’s complaints about his attorney’s legal ability with respect to the motion to suppress hearing and a demurrer to the indictment will be given no consideration here since defendant cannot showany harm resulting from his lawyer’s conduct inasmuch as the jury acquitted defendant of the charges with which the motion to suppress and the demurrer were concerned.
5. Finally, defendant attacks the adequacy of his attorney’s closing argument to the jury with respect to the defense presented to the charges of possession and sale of controlled substances. Appellаnt’s criticism is, in reality, a condemnation of trial counsel because he did not conduct appellant’s defense in the same mаnner as appellant’s present counsel would have. Such a difference of opinion does not require a finding that the trial attorney was so inadequate as to amount to a denial of appellant’s right to effective assistance of counsel. Pitts v. Glass, supra, p. 460.
6. We- now turn to the state’s appeal concerning the five-year sentence received by appellant. Although Code Ann § 6-1001a, enumerating those specific situations wherein the state may appeal, does not allow for appeal from an order denying the state’s motion to amend sentence, this court has ruled that void sentences are appealable by the state.
State v. Stuckey,
7. Thе state maintains that the trial court was required by Code Ann. §§ 27-2511 and 79A-811 (d) to give appellant, as a recidivist, a 30-year sentence. Under Codе Ann. § 27-2511, “[i]f any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shаll afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted . . .” Appellant’s conviсtion for possession and sale of marijuana calls for a
*307
sentence of 5-30 years. Code Ann. § 79A-811 (d). At the sentencing, the trial court refusеd to consider appellant’s previous convictions because he had been given probated sentences. The trial court’s refusal to consider appellant’s earlier convictions was error which rendered the sentence, as pronounced, void. See
Tankersley v. State,
Judgment reversed and remanded with direction in Case No. 62745. Judgment affirmed in Case No. 62919.