Robinson v. State

• Decision Date: 03 December 1986
• Docket Number: No. 43802,43802
• Parties: ROBINSON v. The STATE.
• Court: Georgia Supreme Court

Page 464

350 S.E.2d 464

256 Ga. 564

ROBINSON v. The STATE.

No. 43802.

Supreme Court of Georgia.

Dec. 3, 1986.

Reconsideration Denied Dec. 18, 1986.

Robert E. Andrews, Gainesville, for Leroy W. Robinson, Jr.

Thomas J. Charron, Dist. Atty., Marietta, for the State.

SMITH, Justice.

We granted certiorari in Robinson v. State, 180 Ga.App. 43, 348 S.E.2d 662 (1986), to consider whether the repeal of a statute (that did not contain a saving clause) after an indictment but prior to trial and conviction rendered a subsequent conviction invalid. We find the answer to be yes, and we reverse.

The appellant was charged on February 5, 1985, with the offense of "Trafficking in Cocaine." The indictment recites in pertinent part that the appellant "unlawfully and knowingly actually possess[ed] more than 28 grams of a mixture containing cocaine, ..." At the time of the offense and the indictment, OCGA § 16-13-31(a) provided in part: "Any person who ... is knowingly in actual possession of 28 grams or more of cocaine or of any mixture containing cocaine, ... commits the felony offense of trafficking in cocaine ..." (Emphasis supplied.) The indictment tracked the language of the trafficking in cocaine statute.

Despite compelling arguments in Lavelle v. State, 250 Ga. 224, 297 S.E.2d 234 (1982), that "imposing greater punishment based on the total amount of mixture possessed, and not on the total amount of cocaine, is an unconstitutional classificiation scheme," and that "it is irrational to punish less severely the possessor of 27 grams of pure cocaine than the possessor of 10 grams of cocaine in 20 grams of non-contraband," this court found the scheme to be "rationally related to the objectives of the legislature." Id. at p. 225, 297 S.E.2d 234.

Our courts announced that part of the forbidden conduct under the trafficking in cocaine statute was the possession of any amount of cocaine in a mixture in which the total weight of the mixture was 28 grams or more. Id.; see also Belcher v. State, 161 Ga.App. 442, 288 S.E.2d 299 (1982).

On March 27, 1985, the legislature with knowledge of our construction of OCGA § 16-13-31(a) in Lavelle, supra, see Berman v. Berman, 253 Ga. 298, 299, 319 S.E.2d 846 (1984), approved the repeal of subsection (a) and approved a new subsection (a) in lieu thereof. New subsection (a) was, in part, as follows: " '(a) Any person who ... is knowingly in actual possession of 28 grams or more of cocaine, ... commits the felony offense of trafficking in cocaine ...' " All laws and parts of laws that conflicted with new subsection (a) were specifically repealed in Section 4. (Ga.L.1985, p. 552, effective July 1, 1985.) The legislature apparently persuaded by Lavelle's argument chose to omit the mixture language from both the description of the offense of trafficking in cocaine and from the penalty for trafficking in cocaine.

"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 reenactment with different penalities. [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, 1154, 35 L.Ed.2d 528 (1972).

In Gunn v. State, 227 Ga. 786, 787, 183 S.E.2d 389 (1971), this court set out the common law doctrine, and the Court of Appeals subsequently relied on Gunn in deciding State v. Fordham, 172 Ga.App. 853, 324 S.E.2d 796 (1984); Davis v. State, 172 Ga.App. 893, 325 S.E.2d 926 (1984); and Chastain v. State, 177 Ga.App. 236, 339 S.E.2d 298 (1985).

Gunn v. State, supra, is the law in Georgia. When a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in saving clause. Here the legislature repealed the old law and enacted in its place a new law without including a saving clause. Thus, the appellant's conduct was no longer...