SMILEY v. STATE (2000)

David Smiley was convicted of cocaine possession under OCGA § 16-13-30(a), and appeals his sentence of 30 years imposed under OCGA § 16-13-30(c) and the recidivism statute, OCGA § 17-10-7.   Smiley argues that his previous conviction for cocaine possession with the intent to distribute was not a previous conviction for cocaine possession and, therefore, he should not have been sentenced for a second offense of cocaine possession under OCGA § 16-13-30(c).   We disagree and affirm.

We have held that a conviction for trafficking in cocaine under OCGA § 16-13-31 constitutes a second violation of possession with intent to distribute cocaine under OCGA § 16-13-30(b), triggering the mandatory life sentence required by OCGA § 16-13-30(d).  Gilbert v. State, 208 Ga.App. 258, 260(1), 430 S.E.2d 391 (1993).   In that case, we said:

To conclude that Gilbert's prior conviction under OCGA § 16-13-31 does not trigger the recidivist provisions of OCGA § 16-13-30(d) would lead to an illogical result since Gilbert's first conviction was for a more serious version of the offenses outlined in OCGA § 16-13-30(b).   It appears that OCGA § 16-13-30(b) was a lesser included offense of Gilbert's conviction under OCGA § 16-13-31.

Id. Accord Brundage v. State, 231 Ga.App. 478, 480(4), 499 S.E.2d 408 (1998);  Cody v. State, 222 Ga.App. 468, 471(4), 474 S.E.2d 669 (1996).

A similarly illogical result would apply here if Smiley's previous conviction for possession with intent to distribute did not equal a conviction of simple possession that triggered the mandatory 30-year sentencing for a second simple possession offense under OCGA § 16-13-30(c).   Simple possession is a lesser included offense of possession with the intent to distribute.   See Burse v. State, 232 Ga.App. 729, 731(2), 503 S.E.2d 638 (1998);  Howard v. State, 220 Ga.App. 579, 583(2), 469 S.E.2d 746 (1996).   We find no error in Smiley's sentence.

Judgment affirmed.

BARNES, Judge.

BLACKBURN, P.J., and ELDRIDGE, J., concur.