Robinson v. State, s. 72265

• Decision Date: 16 July 1986
• Docket Number: Nos. 72265,72266,s. 72265
• Citation: 348 S.E.2d 662,180 Ga.App. 43
• Parties: ROBINSON v. The STATE (Two Cases).
• Court: Georgia Court of Appeals

Page 662

348 S.E.2d 662

180 Ga.App. 43

ROBINSON v. The STATE (Two Cases).

Nos. 72265, 72266.

Court of Appeals of Georgia.

July 16, 1986.

Rehearing Denied July 30, 1986.

Certiorari Granted Sept. 4, 1986.

Robert E. Andrews, Gainesville, for appellant.

Thomas Charron, Dist. Atty., Debra H. Bernes, James T. Martin, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

In Case No. 72265, appellant appeals from the convictions of trafficking in cocaine (OCGA § 16-13-31(a)) and possession of marijuana (OCGA §§ 16-13-30(j); 16-13-2(b)). In Case No. 72266, he appeals from the denial of his motion in arrest of the cocaine judgment.

1. Appellant was charged with trafficking in cocaine by an indictment filed May 9, 1985, charging that he knowingly possessed more than 28 grams of a mixture containing cocaine on February 23. He was convicted of that offense on July 19. The contention is that the statute on which the indictment was based was repealed prior to final judgment, ending the prosecution.

An application of the rules of statutory construction leads us to find no repeal of the statute prohibiting the act for which defendant was convicted.

OCGA § 16-13-31(a), which defines and proscribes trafficking in cocaine, was amended by an Act which took effect on July 1, 1985. Ga.L.1985, p. 552. See OCGA § 1-3-4. The Act was described by the legislature as "An Act To amend Code Section 16-13-31 of the Official Code of Georgia Annotated, relating to trafficking in cocaine, illegal drugs, or marijuana and penalties for violations, so as to provide for mandatory minimum penalties upon conviction for certain violations...." A comparison of the before and after versions of Section 31 shows that the legislature did two things.

One, it omitted the language which embraced within this heavy quantity/heavy penalty section those 28 gram and over "mixtures" which contained some cocaine. It left them to the lower penalties prescribed for lesser amounts, i.e., "any controlled substance," in OCGA § 16-13-30. Thus, if the defendant's act involved a mixture of sugar, for example, and less than 28 grams of cocaine as it is statutorily defined in OCGA § 16-13-26, the defendant would be subject only to the lower penalties prescribed in Section 30. "Possession" of the controlled substance cocaine, which defendant was charged with, was in either event a crime, both before and after the 1985 amendment to Section 31.

The second change was a substantial increase in the penalties, depending on the quantity of cocaine involved. While the legislature left the quantity pegs the same as the pre-amendment categories, the escalating mandatory penalties were nearly doubled, both in terms of imprisonment and fines. Thus, persons involved with 28 grams or more of the controlled substance are to be even more severely dealt with than before. As the crisis in cocaine climbs, the legislature spoke and announced that so does the cost of involvement for those with the higher quantities.

The Act, therefore, did not repeal the section describing the crime; at the end of the Act, it merely repealed the laws and parts of laws in conflict with the Act. In this connection, see Jackson v. State, 12 Ga. 1, 3(1) (1852). Since the Act amended OCGA § 16-13-31, it can hardly be said to have repealed it. Nor did it extinguish as a crime the possession of a mixture containing cocaine, when the cocaine itself, in the mixture in any of its forms as described in OCGA § 16-13-26(1)(D), weighed less than 28 grams. It merely relegated such possession to the lesser penalty statute prohibiting the possession of any controlled substance. OCGA § 16-13-30(a).

A reading of the rest of the Act reveals that it was part of a comprehensive legislative effort to combat more effectively and stringently the influx of cocaine in this State, targeting this particular controlled substance for more concentrated treatment. In addition to the upgrading of OCGA § 16-13-31, it specifically amended the Code "so as to authorize a Special Cocaine Task Force to assist local law enforcement agencies in cocaine abuse and trafficking investigations and the apprehension of violators; to provide that the Special Cocaine Task Force shall install and publicize the number of a state-wide telephone in an effort to encourage citizens to report incidents of drug abuse and trafficking or any suspicious activity involving drug abuse and trafficking; ... to authorize a mobile cocaine education van ... available free of charge ... to teach youths and adults about the dangers of cocaine and other controlled substances...." Ga.Laws 1985, p. 552.

In construing the statute, we as a court must try to ascertain the purpose and intent of the legislature and then try to construe the law to implement that intent. Mullins v. First Gen. Ins. Co., 253 Ga. 486, 322 S.E.2d 265 (1984). This is a cardinal rule of statutory construction. Enfinger v. Intl. Indem. Co., 253 Ga. 185, 317 S.E.2d 816 (1984). Reading the statute as changed by the legislature, in the context of the other related provisions of the chapter on controlled substances, we conclude that the omission of the "mixture" language signalled the abandonment of a phrase which permitted conviction under the higher-penalty provision for a small quantity of cocaine which was part of a larger quantity of an uncontrolled substance. It reassigned the act of possessing this to the coverage of OCGA § 16-13-30, for its lower penalties.

We cannot ascribe to the word "mixture" the meaning presented by the dissent. We do not know whether the legislature chose it in 1980 because of the Webster's definition chosen by the dissent or even whether it considered it in opposition to the word "compound." As the state's forensic science expert testified, compounds are mixtures of different substances. There are several different meanings of the word "compound", she said, and a mixture can be a compound. The omission of the phrase thus left within the coverage of this section "cocaine" in the many forms describing this Schedule II controlled substance in OCGA § 16-13-26(1)(B). In one of these forms it could also be incorporated into a "mixture" in the sense that it was diluted with some uncontrolled substance such as sugar.

The cocaine having come within that statutory definition according to the testimony of the state's witness, and the evidence having supported the charge that defendant was in possession of it, the conviction stands. The indictment charges that defendant did "unlawfully and knowingly actually possess more than 28 grams of a mixture containing cocaine, as described in Schedule II and in violation of the Georgia Controlled Substances Act, contrary to the laws of said State." The actual act or conduct he was charged with, and that the jury found him guilty of, and which is supported by the evidence, is the possession of "more than 28 grams of a mixture containing cocaine." Both before and after the amendment effective July 1, the possession of any amount of cocaine was prohibited.

The above analysis is necessary in order to deal with a fairly recent apparent judicial exception to the general law of Georgia which has governed us for at least the last 150 years. The Penal Code of 1833, Sec. 34, provided: "All crimes and offences committed shall be prosecuted and punished under the laws in force at the time of the commission of such crime or offence, notwithstanding the repeal of such laws before such trial takes place." This continued in Cobb's Digest of 1851 (Penal Laws par. 327, p. 838), the Code of 1863 (§ 4550, p. 890), and so forth up to the 1895 Penal Code § 18, which simply streamlined the language to read: "All crimes shall be prosecuted and punished under the laws in force at the time of the commission thereof, notwithstanding the repeal of such laws before such trial takes place." This newer language was carried forward through the 1933 Code § 26-103.

The courts applied the law according to its terms, recognizing the date of the offense as determinative of what law controlled, that being the law on the date of the offense. Jordan v. State, 38 Ga. 585, 586(1) (1869), Patton v. State, 80 Ga. 714, 6 S.E. 273 (1888), and Barton v. State, 81 Ga.App. 810, 813(3), 60 S.E.2d 173 (1950) are illustrative.

In 1968 the Criminal Code was overhauled and the legislature chose a single date for its uniform effectiveness, so that all crimes committed on or after that date would be governed by it, and any crimes committed beforehand would be governed by "the law existing at the time of the commission thereof ..." Ga.L.1968, p. 1249, § 1. In its concern with adequately covering these two situations, i.e., crimes committed before the effective date and not yet prosecuted and crimes committed after the effective date, the legislature neglected to provide expressly for those future situations where portions of the substantive criminal statutes were changed by future legislatures.

That is to say, new Section 26-103 focused directly only on past unprosecuted crimes and crimes committed while it, unamended, was in effect. Ponder v. State, 121 Ga.App. 788, 789, 175 S.E.2d 55 (1970) shows the application of this continued principle that the commission of the crime was the governing date. The revised statute expressly provided for Ponder because the offense was committed prior to the effective date of the new Criminal Code.

The opportunity to address the situation left vacant by the legislature came in 1971, in Price v. State, 124 Ga.App. 850(1), 186 S.E.2d 360 (1971). There a 1970 change in the law relating to marijuana was urged by defendant to extricate him from the conviction. The court had no trouble holding that the law in effect at the time of the commission of the crime, governed. It cited several date-of-commission cases as well as "old Code § 26-103 and new Code Ann. § 26-103 (Criminal Code of Georgia, Ga.L.1968, pp. 1249, 1260)." ¹

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