Opinion
A99A2337.
DECIDED: JANUARY 5, 2000.
Drug violation. Glynn Superior Court. Before Judge Tuten.
Luz F. Cloy, for appellant.
Stephen D. Kelley, District Attorney Ann S. Williams, Assistant District Attorney, for appellee.
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 (d). 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. Blackburn, P.J., and Eldridge, J, concur.