Mallarino v. State

• Decision Date: 21 February 1989
• Docket Number: No. 77646,77646
• Citation: 379 S.E.2d 210,190 Ga.App. 398
• Parties: MALLARINO v. The STATE.
• Court: Georgia Court of Appeals

Page 210

379 S.E.2d 210

190 Ga.App. 398

MALLARINO v. The STATE.

No. 77646.

Court of Appeals of Georgia.

Feb. 21, 1989.

Glenn Zell, Atlanta, for appellant.

Jack O. Partain III, Dist. Atty., Lee R. Taylor, Dalton and Todd L. Ray, Asst. Dist. Attys., for appellee.

BIRDSONG, Judge.

Guillermo Mallarino appeals his conviction and sentencing for trafficking in cocaine in that he did actually possess and bring into the state of Georgia an amount of cocaine greater than 28 grams.

Appellant and a male passenger were stopped when appellant was observed driving 65 mph on Interstate 75. The speed limit was 55 mph. The stop and subsequent search of appellant's car was videotaped. Following the stop, Trooper Ralston initiated a driver's license check of the appellant and an "EPIC check" of files pertaining to immigration on both men. A warning was issued for the speeding violation. Based on responses that he obtained from the two men, coupled with certain other factors, Trooper Ralston became suspicious that the men were involved in some other activity besides speeding. Trooper Ralston then requested the appellant to consent to a search of his car after allowing the appellant to read and repeating to him the information contained in a consent to search form. The appellant was from Colombia and spoke English well. Appellant had five years of college in Colombia and stated that he understood English and did not need to use the Spanish version of the consent to search form. The appellant signed the consent to search form, gave his consent to the search, and did not thereafter object to either scope or duration of the search. Upon opening the car trunk, Trooper Ralston discovered a secret compartment behind the rear seat. Packages of cocaine were found in this compartment. The appellant and his companion were placed under arrest and turned over to the local sheriff's department for further investigation. From the time of the stop to the search over 30 minutes elapsed, and approximately one and one-half hours elapsed from the time of the stop to appellant's release to the custody of the sheriff's department. Held:

1. Appellant asserts that the trial court erred in sentencing him to 25 years confinement and to a fine of $500,000, pursuant to OCGA § 16-13-31(a)(1)(C), since the indictment averred only that appellant possessed and brought into the state cocaine in an amount "greater than 28 grams" and the jury found him guilty in accordance with the indictment. We agree.

The trial record clearly shows that the trial judge believed he was required to impose, as a minimum mandatory sentence, the minimum mandatory sentence of 25 years imprisonment and a fine of $500,000. This is the minimum mandatory sentence to be imposed where the offender has been convicted of trafficking in cocaine and the quantity of cocaine or the cocaine mixture involved and of which the offender has been duly convicted is 400 grams or more. OCGA § 16-13-31(a)(1)(C). However, when the offender is convicted of trafficking in cocaine and the quantity of cocaine or the cocaine mixture involved and of which he has been convicted of possessing is only 28 grams or more, but less than 200 grams, the mandatory minimum sentence is a term of 10 years imprisonment and a fine of $100,000. OCGA § 16-13-31(a)(1)(A). In such cases, it is that quantity of drugs averred in the indictment of which the offender has been convicted, rather than the amount of drugs which the evidence establishes that the offender possessed in excess of the amount averred in the indictment, that controls in determining which mandatory minimum sentence is operative under OCGA § 16-13-31(a).

This statutory interpretation is consistent with the general rule that "an accused cannot receive a sentence greater than that prescribed by law for the crime for which he was indicted and convicted." Riggins v. Stynchcombe, 231 Ga. 589, 592, 203 S.E.2d 208. Moreover, the legislative history of OCGA § 16-13-31 reflects that in 1985 the statute was amended in part "so as to provide for mandatory minimum penalties upon conviction for certain violations...." (Emphasis supplied.) Ga.L.1985, p. 552.

In this case, the indictment averment of which the appellant was convicted was for trafficking in cocaine by actually possessing and bringing into the state an amount of cocaine "greater than 28 grams." It is impossible to determine from the announced verdict the maximum amount of cocaine which the jury found the appellant guilty of possessing, although the minimum amount of which the accused was both indicted and convicted of possessing was more than 28 grams. We will not speculate as to what was in the minds of the jury when they announced their verdict. Due process considerations dictate that the minimum permissible sentence for this offense is controlled by OCGA § 16-13-31(a)(1)(A). Cf., Riggins, supra at 592, 203 S.E.2d 208.

This error, although prejudicial, can be cured by a sentencing rehearing. In such proceedings, the trial judge shall consider as operative the mandatory minimum sentence requirements of OCGA § 16-13-31(a)(1)(A), and the maximum sentence as that authorized by OCGA § 16-13-31(f). See generally Recoba v. State, 179 Ga.App. 31(4), 345 S.E.2d 81.

2. Appellant's second and third enumerations of error are that the trial court erred in overruling its motion to suppress and in holding that appellant voluntarily consented to the search of his vehicle, respectively.

In ruling on appellant's suppression motion, the trial court found inter alia that Trooper Ralston stopped appellant's vehicle for speeding; that Trooper Ralston subsequently gave appellant a warning ticket and asked for consent to search the car; that appellant did not initially understand the trooper's request, but he did eventually comprehend what the trooper wanted and consented for him to search the car; that a hidden compartment was discovered as soon as the vehicle trunk was opened; and, that the trooper upon examination was able to detect packages in the trunk similar to packages of cocaine which he had found in other cases of this nature. The trial court's decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless found to be clearly erroneous. Spencer v. State, 186 Ga.App. 54, 55, 366 S.E.2d 390; Lockwood v. State, 184 Ga.App. 262(1), 361 S.E.2d 195; see Borda v. State, 187 Ga.App. 49, 50, 369 S.E.2d 327. There exists no basis in this record to reverse any of the findings of fact or credibility determinations of the trial court.

Appellant's car was lawfully stopped for speeding. As Trooper Ralston observed appellant violating the traffic laws by speeding, he had probable cause to stop the vehicle and investigate the incident. Beguiristain v. State, 187 Ga.App 164, 165, 369 S.E.2d 774; Steward v. State, 182 Ga.App. 659(1), 356 S.E.2d 890, cert. den.

Appellant asserts that the circumstances of this case establish that the stop for a traffic violation was in fact a pretextual stop for a drug investigation and thus an unreasonable seizure of appellant. We disagree. Merely that Trooper Ralston had received substantial training in interdicting drug couriers and was vigilant for their use of the state's highways, "would not alter his authority to make a routine traffic stop." Coop v. State, 186 Ga.App. 578(1)(a), 367 S.E.2d 836. The trial record does not support appellant's claims of subterfuge; Trooper Ralston testified that he stopped appellant's vehicle because it was speeding. Compare United States v. Hardy, 855 F.2d 753 (11th Cir.1988). The trial court perforce of its rulings found this testimony credible and we will not reverse the trial court's determinations of credibility unless they clearly are erroneous. Spencer, supra 186 Ga.App. at 55, 366 S.E.2d 390.

Appellant maintains that after the stop of his car he was subjected to illegal detention while Trooper Ralston conducted an investigation based on an unarticulable hunch. Even in the absence of probable cause, a police officer "may stop an automobile and conduct a limited investigative inquiry of its occupants ... if he has reasonable grounds for such action--a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing." State v. Misuraca, 157 Ga.App. 361, 364, 276 S.E.2d 679, U.S. cert. den. During this detention, the police, for example, may attempt to determine the person's identity, Misuraca, supra at 365, 276 S.E.2d 679, and ask for a display of driver's license and vehicle registration. Coop, supra 186 Ga.App. at 579, 367 S.E.2d 836. Trooper Ralston's initial questioning of appellant and appellant's passenger and his examination of appellant's driver's license and vehicle registration caused him to form a reasonable and articulable suspicion that appellant and the passenger may have been involved in other criminal activity, including possible immigration violations. Under these...