Hammock v

Zant, 244 Ga. 863, 262 S.E.2d 82, 1979 Ga. LEXIS 1443 (1979). Overt act required. — Former Code 1933, § 79A-812 (see now O.C.G.A. § 16-13-33) required with certainty an overt act for successful prosecution. Hammock v. Zant, 244 Ga. 863, 262 S.E.2d 82, 1979 Ga. LEXIS 1443 (1979). To be guilty of conspiracy under O.C.G.A. § 16-13-33 one or more of the conspirators must commit an overt act as required by O.C.G.A. § 16-4-8. Price v. State, 247 Ga. 58, 273 S.E.2d 854, 1981 Ga. LEXIS 607 (1981). Only one conspiracy can result from single agreement. — Whether object of single agreement is to commit one or many crimes, it is in either case the agreement that constitutes the conspiracy, and if there is only one agreement there can be only one conspiracy. Price v. State, 247 Ga. 58, 273 S.E.2d 854, 1981 Ga. LEXIS 607 (1981). Separate convictions under separate conspiracy statutes may be authorized. — When conspiracy contemplates commission of more than one substantive offense, and there are separate conspiracy statutes separately punishing a conspiracy to commit each offense, a separate conviction under each conspiracy statute may be authorized. Price v. State, 247 Ga. 58, 273 S.E.2d 854, 1981 Ga. LEXIS 607 (1981). There may be multiple convictions for multiple substantive offenses committed pursuant to single conspiracy. Price v. State, 247 Ga. 58, 273 S.E.2d 854, 1981 Ga. LEXIS 607 (1981). Lesser included offenses. — When the defendant was convicted of trafficking in marijuana, a conviction for conspiracy to traffic in marijuana cannot also stand and the jury should be instructed that a verdict of one or the other is authorized 16-13-33 but not both. Hardin v. State, 172 Ga. App. 232, 322 S.E.2d 540, 1984 Ga. App. LEXIS 2468 (1984). Conspiracy to possess marijuana with intent to distribute is not a lesser included offense of possession. Rowe v. State, 181 Ga. App. 492, 352 S.E.2d 813, 1987 Ga. App. LEXIS 2543 (1987). Charging the defendant with conspiracy to sell and distribute cocaine after defendant pled guilty to a substantive crime, possession of cocaine, did not constitute double jeopardy because the second prosecution required proof of facts not required on the prior prosecution. Rogers v. State, 201 Ga. App. 426, 411 S.E.2d 289, 1991 Ga. App. LEXIS 1441 (1991). Trial court did not plainly err by failing to instruct the jury on possession of marijuana as a lesser-included offense of conspiracy to purchase marijuana because the offense of possession of marijuana was not a lesser-included offense of conspiracy to purchase marijuana as the facts necessary to prove each offense were different. Hunter v. State, 355 Ga. App. 520, 844 S.E.2d 858, 2020 Ga. App. LEXIS 346 (2020). Denial of merger. — Because the defendant’s convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245, 2016 Ga. App. LEXIS 130 (2016). Merger with substantive offense. — Offenses of conspiracy to traffic in marijuana and trafficking itself did not merge when conspirators first possessed the marijuana, since the “trafficking” charge involved sale of the marijuana, an act not yet completed. Meyers v. State, 174 Ga. App. 161, 329 S.E.2d 293, 1985 Ga. App. LEXIS 1773 (1985). Offense of selling marijuana was not complete upon defendants’ leading of undercover agents to the site of the marijuana since an agreed-upon weighing, loading, and delivering had not yet occurred; thus, the substantive trafficking offense did not merge with or extinguish the conspiracy-to-traffic offense. Meyers v. 512 State, 174 Ga. App. 161, 329 S.E.2d 293, 1985 Ga. App. LEXIS 1773 (1985). Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial where the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851, 395 S.E.2d 30, 1990 Ga. App. LEXIS 744 (1990). Admission of character evidence held harmless error. — Evidence of conversation showing that defendant was willing to be a “bigtime” cocaine dealer was erroneously admitted, but where the evidence of defendant’s guilt was ample and it was highly probable that placing defendant’s character in issue did not contribute to the jury’s verdict, the error was not harmful. Hargrove v. State, 188 Ga. App. 336, 373 S.E.2d 44, 1988 Ga. App. LEXIS 1030 (1988). Evidence sufficient for criminal attempt to traffic in drugs. — Evidence that the defendant and the defendant’s coconspirators arranged and attempted to purchase one kilogram of cocaine and also attempted to purchase 25 pounds of marijuana from an undercover officer and that the defendant showed the undercover officer money to make the purchases was sufficient to support the defendant’s convictions for criminal attempt to traffic in cocaine and criminal attempt to traffic in marijuana. Rainey v. State, 319 Ga. App. 858, 738 S.E.2d 685, 2013 Ga. App. LEXIS 93 (2013). Evidence sufficient for conspiracy to purchase marijuana. — Evidence was sufficient to support the defendant’s conviction of conspiracy to purchase marijuana because the defendant had previously gone to the seller’s home to purchase marijuana, the defendant accompanied the codefendant to the seller’s home when the latter went to purchase marijuana, the defendant entered the neighbor’s porch with the codefendant where the seller was selling marijuana, drugs and money were visible on the porch, the defendant remained with the seller and the codefendant as they discussed the sale of marijuana for $20 and $10, and the defendant blocked the seller’s friend’s exit as the friend was leaving the residence. Hunter v. State, 355 16-13-33 Ga. App. 520, 844 S.E.2d 858, 2020 Ga. App. LEXIS 346 (2020). Sentence for conspiracy to traffic in marijuana. — Sentencing provisions in O.C.G.A. § 16-13-33, not the general provisions in O.C.G.A. § 16-4-8, are applicable to the offense of conspiracy to traffic in marijuana. Raftis v. State, 175 Ga. App. 893, 334 S.E.2d 857, 1985 Ga. App. LEXIS 2198 (1985). Maximum punishment provisions of this article apply to indictment charging conspiracy. — If defendants are indicted under general conspiracy statute, maximum punishment provisions of it apply, but if indictment charges, “Conspiracy to Possess and Sell Marijuana,” a violation of provisions of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., is properly charged and maximum punishment provisions of it apply. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585, 1975 Ga. App. LEXIS 1864 (1975). Because conspiracy to manufacture methamphetamine was a crime penalized by a special law, the general provisions of the penal code did not apply; thus, under both O.C.G.A. §§ 16-13-30 and 16-13-33, which were mutually exclusive, defendant was properly sentenced to 30 years, which was the maximum sentence allowed. McWhorter v. State, 275 Ga. App. 624, 621 S.E.2d 571, 2005 Ga. App. LEXIS 1056 (2005). Maximum sentence appropriate. — Defendant’s conviction did not have to be reversed on the ground that the indictment alleged one manner of the offense and the evidence showed another manner of the offense as the statute for trafficking in cocaine allowed possession of either pure cocaine or a cocaine mixture, and the conspiracy offense on which defendant was convicted required only that defendant conspire with others to knowingly possess cocaine and that one of the conspirators overtly acted to do so; since that evidence was present, defendant’s conviction was not invalid and defendant was eligible for the maximum term for the offense which was the object of the conspiracy, trafficking in cocaine. Allison v. State, 259 Ga. App. 775, 577 513 S.E.2d 845, 2003 Ga. App. LEXIS 165 (2003), cert. denied, No. S03C0904, 2003 Ga. LEXIS 512 (Ga. May 5, 2003). Mandatory term not required. — Although O.C.G.A. § 16-13-33 provides for the possible imposition of the same maximum term of imprisonment as would be applicable to the substantive crime, that section does not require the court to impose a mandatory term of imprisonment, or deny the court the discretion it would otherwise have under O.C.G.A. § 16-13-31 in determining whether the sentence it imposes is to be served entirely in prison. Raftis v. State, 175 Ga. App. 893, 334 S.E.2d 857, 1985 Ga. App. LEXIS 2198 (1985). Fine unauthorized when sentences not probated. — Fines imposed upon convictions of conspiracy to traffic in cocaine and marijuana were unauthorized and void since no part of the sentences was probated. Gonzalez v. State, 201 Ga. App. 437, 411 S.E.2d 345, 1991 Ga. App. LEXIS 1452 (1991). O.C.G.A. § 16-13-33 contains no provision for imposition of a fine. Gonzalez v. State, 201 Ga. App. 437, 411 S.E.2d 345, 1991 Ga. App. LEXIS 1452 (1991). Fine as condition of probation authorized. — Even though conviction of conspiracy under O.C.G.A. § 16-13-33 did not authorize imposition of a fine, a fine up to $10,000 was authorized as a condition of probation. Washington v. State, 183 Ga. App. 422, 359 S.E.2d 198, 1987 Ga. App. LEXIS 2011 (1987). Imposition of $100,000.00 fine as condition of probation was invalid, illegal and void for the reason that, since the offense of attempted trafficking in cocaine is punishable by imprisonment but contains no provision for a fine, the maximum fine which could be imposed as a condition of probation was $10,000.00. Holbert v. State, 177 Ga. App. 461, 340 S.E.2d 25, 1986 Ga. App. LEXIS 1462 (1986). Imposition of fine precluded. — When the clear language of O.C.G.A. 16-13-33 § 16-13-33 precludes the imposition of a fine in conjunction with a prison sentence for conspiracy to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., the preclusion applies equally to attempt and conspiracy. Watson v. State, 276 Ga. 212, 576 S.E.2d 897, 2003 Ga. LEXIS 111 (2003). Under O.C.G.A. § 16-13-33, a conviction for criminal attempt to violate the Georgia Controlled Substance Act, O.C.G.A. § 16-13-20 et seq., does not authorize the imposition of a fine; therefore, Watson v. State, 256 Ga. App. 789 (2002) is reversed to the extent that it holds to the contrary. Watson v. State, 276 Ga. 212, 576 S.E.2d 897, 2003 Ga. LEXIS 111 (2003). Improper conviction of multiple conspiracy counts is harmless when sentence is within legal limits for single conspiracy. Price v. State, 247 Ga. 58, 273 S.E.2d 854, 1981 Ga. LEXIS 607 (1981). Circumstantial evidence sufficient to convict. — Circumstantial evidence linking defendant to codefendant drug pilot, to a warehouse containing weapons, records of the criminal enterprise and aircraft equipment, and to an admitted smuggler of Colombian cocaine, was sufficient for a conviction under O.C.G.A. § 16-13-33. Parrott v.