Sample v. State
| Decision Date | 27 May 1998 |
| Docket Number | No. A98A0992.,A98A0992. |
| Citation | 232 Ga. App. 690,503 S.E.2d 576 |
| Parties | SAMPLE v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Timothy T. Herring, Atlanta, for appellant.
Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.
Cazenble J. Sample pled guilty to the crimes of possession of marijuana with intent to distribute and possession of a firearm during the commission of the felony of trafficking cocaine. Subsequently, Sample filed a motion to have the sentence relating to the possession of a firearm nullified.1 The trial court denied Sample's motion, and he now appeals. For the reasons set forth below, we affirm.
On February 20, 1996, Sample was indicted by a grand jury on four counts: (1) possession of marijuana with intent to distribute; (2) possession and trafficking of cocaine; (3) possession of a .44 magnum firearm during the commission of the felony of trafficking cocaine; and (4) possession of a .380 caliber firearm during the commission of the felony of trafficking cocaine. Pursuant to a negotiated plea bargain, Sample pled guilty to Counts 1 and 4, and the State agreed to enter a nolle prosequi on the remaining two counts. Sample also agreed to testify against two co-defendants who had been caught in the same "buy and bust" in which Sample participated.
At the May 15, 1996 hearing at which Sample entered his guilty plea, the prosecutor began by listing each of the crimes for which Sample had been indicted. Sample, an educated man who had attended two years of college, admitted that he had read the charges in the indictment and that he understood them completely. Count 4 of the indictment clearly and unequivocally states that the firearm charge was related to the felony of trafficking cocaine, not marijuana. Sample also stated that he understood the sentence that the State had recommended to the court, that his plea was voluntary, and that he was satisfied with the representation that he had received from his attorney.
After Sample made all of these statements, the prosecutor asked: "Did you in fact during the commission of a felony, that being violation of the Georgia Controlled Substances Act possession of marijuana with intent to distribute, did you possess a firearm?" (Emphasis supplied.) Sample answered this question affirmatively. Sample also testified that he attempted to sell marijuana to an undercover officer and that he assisted in setting up a sale of cocaine to the same officer, although he did not intend to conduct that transaction himself. On the same day as the hearing, Sample and his attorney signed a statement on the face of the indictment indicating that Sample was pleading guilty to Counts 1 and 4 therein.
Based on the evidence before it, the court sentenced Sample to ten years on Count 1 and five years to be served on Count 4 consecutively. Sample was to serve two years in jail on Count 1, then five years on Count 4. Eight years of probation would follow Sample's incarceration. On August 29, 1997, Sample filed a motion for an order nullifying his sentence with regard to the firearm charge, which the court denied. It is this denial which Sample now appeals.
1. Sample's contentions are based entirely on the prosecutor's slip of the tongue during the plea hearing, when he referred to marijuana instead of cocaine while questioning Sample about the factual basis underlying his guilty plea on Count 4 of the indictment. Because of this slip of the tongue, Sample contends that he pled guilty only to the nonexistent crime of possessing a firearm while also possessing marijuana, not cocaine. Sample further argues that, under Georgia law, marijuana is not considered a controlled substance, and, as such, the firearm charge, which depends on the trafficking of a controlled substance, was unfounded. See Asberry v. State, 220 Ga.App. 40, 467 S.E.2d 225 (1996).
Based on the transcript, however, Sample's argument is misplaced. In essence, Sample suggests that, despite the facts that Count 4 unambiguously...
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...by OCGA § 16-1-8 (b), but the subsequent prosecution was nonetheless barred by the plea agreement); see also Sample v. State , 232 Ga. App. 690, 692 (2), 503 S.E.2d 576 (1998) (recognizing that the State's consent to an order of nolle prosequi in the context of a plea agreement is not a con......
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State v. Hammons, A01A1583.
...vehicular homicide in the first degree, the State agreed to enter a nolle prosequi on the remaining charges. See Sample v. State, 232 Ga.App. 690, 693(2), 503 S.E.2d 576 (1998) (when the State uses its discretion to nolle prosequi charges pursuant to a negotiated plea, doing so does not mea......
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Shabazz v. State, A03A0006.
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Brown v. State, No. A03A0200.
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