Barrett v. State

• Decision Date: 25 June 1987
• Docket Number: No. 74272,74272
• Citation: 183 Ga.App. 729,360 S.E.2d 400
• Parties: BARRETT v. The STATE.
• Court: Georgia Court of Appeals

Page 400

360 S.E.2d 400

183 Ga.App. 729

BARRETT v. The STATE.

No. 74272.

Court of Appeals of Georgia.

June 25, 1987.

Rehearing Denied July 16, 1987.

Certiorari Denied Sept. 24, 1987.

Lillian L. Neal, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Patrick Michael Barrett appeals his conviction for trafficking in cocaine. The offense involved 428 grams of a mixture containing cocaine, of which 80 percent, or 342.4 grams, was proved to be pure cocaine. Held:

1. The language of the indictment reads in pertinent part as follows: "Patrick Michael Barret[t] and Joseph Michael Bassett, Jr. ... did knowingly bring into this state and were knowingly in actual possession of more than 400 grams of a mixture containing cocaine...." Appellant contends his prosecution is a nullity, according to Robinson v. State, 256 Ga. 564, 350 S.E.2d 464, which held that the repeal of OCGA § 16-13-31 without a "saving clause," after an indictment but prior to trial and conviction rendered the subsequent conviction invalid. Appellant raises the point evidently for the first time on appeal, by an "amendment" to his enumerations of error, which amendment he filed after both he and the State had briefed the appeal issues. If he is correct in his attack on the conviction, then by virtue of de facto abatement during prosecution it is a nullity, and is void. " 'A "void" judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights.... But whenever it is brought up ... [the party] may assail its pretentions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral.' [Cit.]" Jowers & Son v. Kirkpatrick Hardware Co., 21 Ga.App. 751(2), 94 S.E. 1044. By statute, in Georgia, "[t]he judgment of a court having no jurisdiction of the person or subject matter, or void for any ... cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it." OCGA § 17-9-4. Mason v. Carter, 223 Ga. 2(2), 153 S.E.2d 162. See Hagan v. Hagan, 209 Ga. 313(2), 72 S.E.2d 295. If the judgment is a nullity and void, the right to attack it is not lost by laches (Mason, supra); nor is it waived by the failure to attack it before, since it is void, and not voidable, in that the abatement absolutely extinguishes the prosecution, and by definition amounts to the "entire overthrow or destruction of the action." 1 Am.Jur.2d, Abatement, Survival & Revival § 1, p. 41 (2d ed.) Therefore, the appellant's attack upon this conviction, based upon abatement, is properly before this court, and must be heard.

(a) In Robinson 256 Ga. at p. 565, 350 S.E.2d 464, the Supreme Court stated the rule: " 'At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. [Cits.] Abatement by repeal included a statute's repeal and re-enactment with different penalties. [Cit.] And the rule applied even when the penalty was reduced. [Cit.] To avoid such results, legislatures frequently indicated an intention not to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. [Cit.]' Bradley v. United States, 410 U.S. 605, 607-608, 93 S.Ct. 1151, 1153-54, 35 L.Ed.2d 528 (1973)."

What necessitated the ruling in Robinson, and distinguishes it from this case, is the fact that the conduct charged against that appellant--possession of "more than 28 grams of a mixture containing cocaine"--was no longer a crime after the repeal of the statute effective July 1, 1985, a date before the entry of final judgment in Robinson. See also Blount v. State, 181 Ga.App. 330, 352 S.E.2d 220.

In both State v. Fordham, 172 Ga.App. 853, 324 S.E.2d 796 and Davis v. State, 172 Ga.App. 893, 325 S.E.2d 926, cited by Robinson, the statute making the charged conduct a crime was not reenacted when it was repealed, but a period of time intervened between repeal and reenactment during which there was no such crime. Clearly in such a case, the repeal, i.e., the abolishment of the crime, terminates a prosecution as indicated in Robinson. To the same effect and similar circumstances, see Chastain v. State, 177 Ga.App. 236, 339 S.E.2d 298 also cited in Robinson.

Likewise, in Gunn v. State, 227 Ga. 786, 183 S.E.2d 389, cited by the court in Robinson, there was no valid law defining the crime at the time the appellant committed the acts. See Gunn v. Balkcom, 228 Ga. 802, 188 S.E.2d 500.

In Robinson, supra, and Blount, supra, the conduct could have involved an amount of cocaine, less than 28 grams under the 1985 law (Ga.L.1985, p. 552) or less than 10 percent pure cocaine under the 1986 law (Ga.L.1986, p. 397, § 1), which per se did not and does not constitute "trafficking" in this state since the 1985 repeal. The decisions and the rule stated in Robinson and Blount are absolutely correct, and were necessary to prevent conviction of the crime of trafficking for conduct that did not constitute the crime of trafficking in cocaine when those defendants were tried, but no such exigency prevails in this case, and we perceive the rule to be slightly different.

The conduct in this case--trafficking in 428 grams of a mixture containing cocaine, of which 80 percent, or 342.4 grams, was pure cocaine--has not ceased to be a crime in this state from the day it was committed up to the present date. It was an offense under the law as it stood at the time of the act (trafficking in 400 or more grams of a mixture containing cocaine or in 200 or more grams of cocaine; Ga.L.1980, p. 432, effective July 1, 1980); the conduct was an offense at the time of trial and conviction (trafficking in 200 or more, i.e., 342.4, grams of cocaine; Ga.L.1985, p. 552, effective July 1, 1985); and it is an offense as the law stands today (trafficking in 400 grams or more of a mixture with a purity of 10 percent or more cocaine; Ga.L.1986, p. 397 § 1, effective July 1, 1986).

While it is true that, as said by the United States Supreme Court in Bradley, supra, and by our Supreme Court in Robinson, a saving clause will save a prosecution proceeding after repeal of a law which was in effect when the conduct was committed, a saving clause is not the only mechanism by which a prosecution might be validated in a particular case. In Bradley, what was sought was a lighter sentence than applied when the criminal conduct was committed; it was sufficient to that purpose, and did not pose any cost to public and legislative policy against crime, to merely invoke the general saving clause to punish the defendants under the previous law.

However, in the year before Bradley, the United States Supreme Court held: "The rule is well established that prosecutions under statutes impliedly or expressly repealed while the case is still pending on direct review must abate in the absence of a demonstration of contrary congressional intent or a general saving statute. For, '[p]rosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it.' [Cit.]" (Emphasis supplied.) Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 432, 92 S.Ct. 2247, 2273, 33 L.Ed.2d 11. It is this "continued vivification" of the law or statute which is necessary to continue or validate the prosecution. In Pipefitters Local No. 562, the Supreme Court first looked for a "demonstration of ... congressional intent" that would prevent abatement and, not finding any, relied upon the general federal saving clause.

In Sekt v. Justice's Court of San Rafael, 26 Cal.2d 297, 159 P.2d 17, 21, the California Supreme Court said the rule which abates prosecutions following a repeal without a saving clause "is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts ... [and] it being assumed that the Legislature, by repealing the law making the act a crime, did not desire anyone in the future whose conviction had not been reduced to final judgment to be punished under it. But this rule only applies in its full force where there is an outright repeal, and where there is no other new or old law under which the offender may be punished ..." i.e., where, as in Robinson, the offense is abolished and the conduct is no longer a crime.

In Sayer v. Brown, 119 Ga. 539, 546-547, 46 S.E. 649 and Webb v. Echols, 211 Ga. 724, 727, 88 S.E.2d 625, it was held that where a statute expressly declares that an existing statute is repealed, and simultaneously reenacts the same (Sayer, supra) or substantially the same (Webb, supra) provisions, the reenactment neutralizes the repeal and acts as a continuation of the old law. Granted the 1985 and 1986 incarnations of OCGA § 16-13-31 are not the same form as existed prior to the 1985 act and when this conduct was committed in June 1985; but in substantial material effect, they have continued to declare the conduct in this case to be a crime. To paraphrase Sayer, never for a single instant has the conduct in this case ceased to be a crime.

Although the offense has been redefined, this conduct has consistently been included in those definitions as constituting the crime of trafficking. The conclusion is inescapable that the public policy of this state which forbids the sale, manufacture, delivery, bringing into the state or actual possession of the amount of cocaine shown in this case, has never abated but has strengthened.

While clearly after July 1, 1985, the legislature no longer regarded as trafficking in cocaine the possession of an undetermined and...