Williams v

State, 296 Ga. App. 270, 674 S.E.2d 115, 2009 Ga. App. LEXIS 189 (2009). Nonfinal conviction of first offense as predicate for life sentence on second charge. — O.C.G.A. § 17-10-2(a), relating to presentence hearings, did not operate to bar the trial court from relying on one of the cocaine charges to which defendant pled guilty in a guilty plea hearing in order to impose an enhanced mandatory life sentence pursuant to O.C.G.A. § 16-13-30(d) for the second sale of cocaine charge to which defendant pled guilty at the same hearing. Plea bargain negotiations can serve the same purpose as the giving of notice under O.C.G.A. § 17-10-2(a), and, when plea bargain negotiations are conducted, the 16-13-30 defendant can be given “clear notice” of what the state intends to rely upon in aggravation of sentencing at the guilty plea hearing. Martin v. State, 207 Ga. App. 861, 429 S.E.2d 332, 1993 Ga. App. LEXIS 370 (1993). In order for the imposition of life sentences to be mandatory pursuant to O.C.G.A. § 16-13-30(d), a defendant’s prior conviction need not have preceded the defendant’s subsequent violations of O.C.G.A. § 16-13-30(b), but the defendant’s prior conviction must necessarily have preceded the defendant’s subsequent trial for violating O.C.G.A. § 16-13-30(b). State v. Sears, 202 Ga. App. 352, 414 S.E.2d 494, 1991 Ga. App. LEXIS 1774 (1991). Prior conviction trigger for mandatory life sentence. — Defendant’s conviction for the more serious offense of trafficking in cocaine under O.C.G.A. § 16-13-31 was sufficient in conjunction with the defendant’s previous conviction for possession of cocaine with intent to distribute under O.C.G.A. § 16-13-30(b) to trigger the mandatory life sentence provisions of § 16-13-30(d) and the state gave proper notice that the prior conviction would be used in aggravation at sentencing pursuant to § 16-13-30(d). Brundage v. State, 231 Ga. App. 478, 499 S.E.2d 408, 1998 Ga. App. LEXIS 470 (1998). Life sentence appropriate. — When there is evidence of record that the defendant was properly notified of the state’s intent to use defendant’s prior drug convictions in aggravation of punishment at the sentencing hearing, and such evidence was not sufficiently rebutted by defendant, the trial court did not err in sentencing defendant to life in prison as a recidivist. Washington v. State, 216 Ga. App. 352, 454 S.E.2d 214, 1995 Ga. App. LEXIS 113 (1995). Defendant’s conviction for the more serious offense of trafficking in cocaine under O.C.G.A. § 16-13-31 was sufficient in conjunction with prior convictions for sale of cocaine to trigger the mandatory life sentence provision of O.C.G.A. § 16-13-30(d). Covington v. State, 231 Ga. App. 851, 501 S.E.2d 37, 1998 Ga. App. LEXIS 538 (1998). 385 Sentencing (Cont’d) Life sentence cannot be imposed for a first offense even though, at the time a conviction is entered on that offense, the defendant had committed and been convicted of an intervening offense. Mays v. State, 262 Ga. 90, 414 S.E.2d 481, 1992 Ga. LEXIS 244 (1992). Recidivist punishment under subsection (d) not precluded by § 17-10-7(c). — Imposition of mandatory life sentences as recidivist punishment for convictions under each count of an indictment charging six separate offenses of selling cocaine was not precluded by provisions of the statute placing limitations on the use of prior convictions as the basis for imposing enhanced recidivist punishment. McCoy v. State, 210 Ga. App. 672, 437 S.E.2d 366, 1993 Ga. App. LEXIS 1308 (1993). Neither of two concurrent convictions can serve as the predicate for the imposition of a life sentence (under O.C.G.A. § 16-13-30(d)) as to the other. State v. Sears, 202 Ga. App. 352, 414 S.E.2d 494, 1991 Ga. App. LEXIS 1774 (1991). Rehabilitation and life sentence. — There appears to be no constitutional requirement that a defendant receive “the benefit of rehabilitation” before a life sentence for repeated conduct may be imposed under O.C.G.A. § 16-13-30(d). Beasley v. State, 202 Ga. App. 349, 414 S.E.2d 663, 1991 Ga. App. LEXIS 1773 (1991). Neither convictions could serve basis for life imprisonment. — Concurrent six-year sentences imposed upon defendant were not void, and the state’s appeal was dismissed, since neither of defendant’s instant convictions could serve as the predicate for the imposition of a life sentence as to the others. State v. Sampson, 203 Ga. App. 396, 417 S.E.2d 34, 1992 Ga. App. LEXIS 432 (1992), cert. denied, No. S92C0825, 1992 Ga. LEXIS 571 (Ga. July 8, 1992). Use of second offense to revoke first-offender probation. — Trial court did not err in treating the defendant’s commission of the second offense both as the basis for the revocation of defendant’s 16-13-30 first-offender probation which, in turn, resulted in defendant’s conviction of the original offense, and as the “second or subsequent offense” for which O.C.G.A. § 16-13-30 mandates a life sentence. Dean v. State, 200 Ga. App. 752, 409 S.E.2d 667, 1991 Ga. App. LEXIS 1140 (1991), cert. denied, No. S91C1484, 1991 Ga. LEXIS 583 (Ga. Sept. 6, 1991). Notice required for life term. — If a life sentence is to be imposed under O.C.G.A. § 16-13-30(d), the state must notify defendant of any conviction the state intends to use in aggravation of punishment pursuant to that section. Armstrong v. State, 264 Ga. 237, 442 S.E.2d 759, 1994 Ga. LEXIS 421 (1994). Notice to the defendant that two prior convictions would be used against the defendant was timely where notice was given on the day of trial, but before the trial started. Howard v. State, 234 Ga. App. 260, 506 S.E.2d 648, 1998 Ga. App. LEXIS 1200 (1998). Written notice that the state intends to present evidence of prior convictions coupled with oral notice that the state intends to seek a life sentence satisfies the notice requirement. Washington v. State, 238 Ga. App. 561, 519 S.E.2d 234, 1999 Ga. App. LEXIS 858 (1999). Advance notice not required. — O.C.G.A. § 16-13-30 contains no requirement of advance notice of prior felony convictions as a condition to sentencing or to receiving evidence of prior drug conviction. Armstrong v. State, 209 Ga. App. 796, 434 S.E.2d 560, 1993 Ga. App. LEXIS 998 (1993), aff’d, 264 Ga. 237, 442 S.E.2d 759, 1994 Ga. LEXIS 421 (1994). Advising on sentencing. — In a prosecution for possession of methamphetamine, the defendant claimed defense counsel was ineffective for failing to advise the defendant of the possibility of receiving a prison sentence without the possibility of parole. This claim failed as the trial court was entitled to believe trial counsel’s testimony that counsel advised the defendant of this possible sentence before the defendant elected to go to trial. Matthews v. State, 294 Ga. App. 836, 670 S.E.2d 520, 2008 Ga. App. LEXIS 1329 (2008). Enforcement of plea agreement. — With regard to the defendant’s drug 386 possession charges and a plea agreement that waived recidivist punishment, the court held that the trial court erred by denying the defendant’s motion to enforce the plea agreement made with the prior district attorney because an agreement as to terms was clearly made and the fact that the state changed the state’s mind and no longer wanted to honor the plea agreement was not acceptable policy. Syms v. State, 331 Ga. App. 225, 770 S.E.2d 305, 2015 Ga. App. LEXIS 138 (2015). Evidence sufficient for conviction of manufacturing marijuana. — See Holland v. State, 205 Ga. App. 695, 423 S.E.2d 694, 1992 Ga. App. LEXIS 1300 (1992). When verdict sustained. — If the totality of the evidence is sufficient to connect defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the jury’s verdict will be sustained. Singleton v. State, 194 Ga. App. 5, 389 S.E.2d 496, 1989 Ga. App. LEXIS 1705 (1989), superseded by statute as stated in Davenport v. State, 308 Ga. App. 140, 706 S.E.2d 757, 2011 Ga. App. LEXIS 142 (2011). Possession with intent to distribute is not punishable by both fine and imprisonment. — General Assembly has not seen fit to permit imposition of both fine and imprisonment as punishment for a felony, except in specified cases, and possession of phencyclidine with intent to distribute is not one of these. Taylor v. State, 149 Ga. App. 362, 254 S.E.2d 432, 1979 Ga. App. LEXIS 1849 (1979). Unauthorized fines are void part of sentence. — When defendants violated O.C.G.A. § 16-13-30(b) by possessing with intent to distribute diazepam, a Schedule IV controlled substance, the trial court was without authority to impose a $5,000 fine on one defendant and $10,000 fines on each of the other defendants since O.C.G.A. § 16-13-30(h) does not authorize imposition of any fines; since a trial judge may only fix a sentence within the limits prescribed by law, the fines imposed are void and must be stricken from the respective sentences. Castillo v. State, 166 Ga. App. 817, 305 S.E.2d 629, 1983 Ga. App. LEXIS 3279 (1983). 16-13-30 Defendant’s sentence for cocaine possession requiring the defendant to begin making monthly payments on fines, fees, and court costs during the defendant’s incarceration was a punishment that the law did not allow, and therefore was void. Pursuant to O.C.G.A. § 17-10-8, the defendant could only be ordered to make such payments as a condition of probation. Crane v. State, 302 Ga. App. 422, 691 S.E.2d 559, 2010 Ga. App. LEXIS 148 (2010). Juvenile court erred in imposing a fine for possession of cocaine because a fine was not an authorized penalty under O.C.G.A. § 16-13-30. In re A. T., 302 Ga. App. 713, 691 S.E.2d 642, 2010 Ga. App. LEXIS 218 (2010). Monetary fines not authorized on conviction. — Upon conviction of a defendant of possession of cocaine with intent to distribute, the trial court was without authority to impose a fine, penalty fee, and D.A.T.E. fee; the penalty for the offense does not include monetary fines. Rawls v. State, 210 Ga. App. 408, 436 S.E.2d 527, 1993 Ga. App. LEXIS 1202 (1993). Fine of $50,000 was not authorized upon a conviction of a violation of O.C.G.A. § 16-13-30. Donelson v. State, 220 Ga. App. 688, 469 S.E.2d 861, 1996 Ga. App. LEXIS 313 (1996). Phrase “subsequent offense” in O.C.G.A. § 16-13-30(g) means possession of any controlled substance rather than “a controlled substance in Schedule III, IV, or V.” Ray v. State, 181 Ga. App. 42, 351 S.E.2d 490, 1986 Ga. App. LEXIS 2801 (1986). Repeat offenders. — It was not error to sentence defendant as a repeat offender rather than under O.C.G.A. § 16-13-30, where first offense involved possession and control of a controlled substance, and second offense involved possession with intent to distribute. Sewell v. State, 162 Ga. App. 483, 291 S.E.2d 783, 1982 Ga. App. LEXIS 2192 (1982). Enhanced punishment based upon prior conviction. — If the state has not specifically informed the defendant, prior to trial, that it intends to seek enhanced punishment based upon a conviction for a prior offense, the trial court would not be 387 Sentencing (Cont’d) able to impose an enhanced sentence, even if the offense for which the defendant is being tried is a “second or subsequent offense.” Mays v. State, 262 Ga. 90, 414 S.E.2d 481, 1992 Ga. LEXIS 244 (1992); Jordan v. State, 217 Ga. App. 420, 457 S.E.2d 692, 1995 Ga. App. LEXIS 467 (1995). Previous convictions not final at the time a sentence was imposed because they were on appeal could not be relied upon as grounds for imposing enhanced punishment. Dunn v. State, 208 Ga. App. 197, 430 S.E.2d 50, 1993 Ga. App. LEXIS 466 (1993); Covington v. State, 226 Ga. App. 484, 486 S.E.2d 706, 1997 Ga. App. LEXIS 657 (1997). Unpublished decision: Categorical approach was properly applied in determining that a defendant’s prior conviction under O.C.G.A. § 16-13-30 was a “controlled substance offense” for purposes of the career offender guideline, U.S. Sentencing Guidelines Manual § 4B1.1; although the defendant received less than the statutory minimum sentence under O.C.G.A. § 16-13-30, the state court record showed that the defendant was convicted of selling cocaine, not possessing cocaine. United States v. Partee, 376 Fed. Appx. 614, 2010 U.S. App. LEXIS 10687 (7th Cir.), cert. denied, 562 U.S. 991, 131 S. Ct. 439, 178 L. Ed. 2d 340, 2010 U.S. LEXIS 8271 (2010). Date of commission of offense determines applicability of enhanced punishment. — It is not the date of conviction which determines the applicability of enhanced punishment but the date of the commission of the offense; where conviction was for offense which occurred prior to offense which resulted in prior conviction, trial court erred in imposing enhanced punishment under subsection (d). Doe v. State, 205 Ga. App. 322, 422 S.E.2d 558, 1992 Ga. App. LEXIS 1218 (1992). Second conviction for sale of cocaine results in sentence of imprisonment for life, even when the prior offense is not set out in the indictment, when the state complies with the requirement of 16-13-30 O.C.G.A. § 17-10-2(a), which provides that only such evidence in aggravation as the state has made known to the defendant prior to defendant’s trial shall be admissible. State v. Hendrixson, 251 Ga. 853, 310 S.E.2d 526, 1984 Ga. LEXIS 555 (1984). Sentenced for a second offense of cocaine possession. — Defendant’s previous conviction for cocaine possession with the intent to distribute constituted a previous conviction for cocaine possession that triggered the mandatory 30-year sentencing for a second simple possession offense under O.C.G.A. § 16-13-30(c). Smiley v. State, 241 Ga. App. 712, 527 S.E.2d 585, 2000 Ga. App. LEXIS 4 (2000). Life sentence for trafficking in cocaine. — Life sentence was properly imposed on the defendant after the defendant was convicted of trafficking in cocaine under O.C.G.A. § 16-13-31. Howard v. State, 234 Ga. App. 260, 506 S.E.2d 648, 1998 Ga. App. LEXIS 1200 (1998). Life sentence based on conviction in another state. — Imposition of the life sentence was erroneous when defendant’s prior conviction was under South Carolina law and thus did not invoke the provisions of O.C.G.A. § 16-13-30(d). Peterson v. State, 212 Ga. App. 147, 441 S.E.2d 481, 1994 Ga. App. LEXIS 191 (1994). Probation as punishment. — Punishments provided in O.C.G.A. § 16-13-30 do not preclude probation as a punishment. Lester v. State, 190 Ga. App. 59, 378 S.E.2d 364, 1989 Ga. App. LEXIS 115 (1989). Sentence for attempted possession appropriate. — Trial court did not err in sentencing defendant, who had been convicted of attempted possession of crack cocaine, for purchasing a piece of a nut from an undercover police officer thinking it was crack cocaine, within the sentencing range for attempted possession of a Schedule II controlled substance, despite the fact that the indictment did not specifically allege that crack cocaine was a Schedule II controlled substance. The indictment and proof clearly showed that defendant had in fact attempted to purchase a Schedule II 388 controlled substance. Lovain v. State, 253 Ga. App. 271, 558 S.E.2d 812, 2002 Ga. App. LEXIS 29 (2002). Fine as condition of probation. — When a defendant was convicted of possession of cocaine with intent to distribute under O.C.G.A. § 16-13-30 and sentenced to the mandatory minimum of 10 years’ imprisonment, plus 30 years on probation, the trial court did not err in imposing a $5,000 fine as a condition of probation. O.C.G.A. § 17-10-8 permitted a trial court to impose a fine as a condition of probation. Marshall v. State, 291 Ga. App. 284, 661 S.E.2d 662, 2008 Ga. App. LEXIS 473 (2008). Sentence outside statutory range. — Since the ten-year felony sentence, entered by the trial court and imposed upon the defendant’s convictions for possession of a controlled substance, possession of marijuana, and improper turn, was outside the statutory range in O.C.G.A. § 16-13-30(g), the sentence was void. Accordingly, the trial court had jurisdiction to resentence the defendant at any time. Simmons v. State, 315 Ga. App. 82, 726 S.E.2d 573, 2012 Ga. App. LEXIS 320 (2012). Because the 25-year sentence imposed by the trial court exceeded the statutory maximum under O.C.G.A. § 16-13-30(c), the sentence was void. Royals v. State, 327 Ga. App. 337, 761 S.E.2d 357, 2014 Ga. App. LEXIS 334 (2014). Sentence within authorized range. — Defendant’s sentence to five years of confinement to be probated after 12 months, payment of fines, a monthly probation fee, and submission to special conditions of probation was well within the range authorized for possession of cocaine and was not cruel and unusual punishment. Toth v. State, 213 Ga. App. 247, 444 S.E.2d 159, 1994 Ga. App. LEXIS 530 (1994). When a defendant was sentenced to five years imprisonment for possession of cocaine, the sentence was within the statutory limits of two to 15 years, and was not so overly severe or excessive as to shock the conscience. Palmore v. State, 236 Ga. App. 285, 511 S.E.2d 624, 1999 Ga. App. LEXIS 128 (1999). Defendant’s sentence of 30 years with five years to serve and 25 years on proba- 16-13-30 tion for selling cocaine was within the limits set by O.C.G.A. § 16-13-30(d) and would not be disturbed. Harden v. State, 239 Ga. App. 700, 521 S.E.2d 829, 1999 Ga. App. LEXIS 1114 (1999). Since defendant, as a fourth-time felon, faced a maximum punishment of 30 years in prison with no possibility of parole, and the trial court sentenced defendant to 25 years in prison with no possibility of parole, defendant’s sentence was within the statutory guidelines; accordingly, the sentence was not void. Taylor v. State, 261 Ga. App. 248, 582 S.E.2d 209, 2003 Ga. App. LEXIS 601 (2003), cert. dismissed, No. S03C1377, 2003 Ga. LEXIS 801 (Ga. Sept. 22, 2003). Appellate court declined to review the defendant’s 30-year sentence because the sentence was within the statutory guidelines; the defendant had been found guilty of possessing cocaine with the intent to distribute, the state introduced three prior felony convictions in aggravation of sentencing pursuant to O.C.G.A. § 17-10-2(a), and given the defendant’s prior drug convictions and the mandate of O.C.G.A. § 17-10-7(c), the defendant faced a maximum punishment of life in prison under O.C.G.A. § 16-13-30(d). Jackson v. State, 284 Ga. App. 619, 644 S.E.2d 491, 2007 Ga. App. LEXIS 376 (2007), cert. denied, No. S07C1169, 2007 Ga. LEXIS 521 (Ga. June 25, 2007), overruled on other grounds, Hill v. State, 360 Ga. App. 143, 860 S.E.2d 893, 2021 Ga. App. LEXIS 318 (2021). Defendant misconstrued the language in O.C.G.A. § 16-13-30(d) when the defendant contended that a prior conviction for the sale of marijuana was improperly used to enhance defendant’s sentence for a first conviction for possession with intent to sell amphetamine; the defendant’s sentence of 30 years with 20 to serve was within the range set out for a conviction for possession with intent to sell amphetamine. McElreath v. State, 284 Ga. App. 349, 643 S.E.2d 863, 2007 Ga. App. LEXIS 320 (2007). Because the defendant’s conviction was the second for possession of cocaine, the defendant was subject to a sentence of between 5 and 30 years under O.C.G.A. 389 Sentencing (Cont’d) § 16-13-30(c), and the trial judge’s sentence of 25 years, with eight years to serve, was within the legal range of punishment. Shook v. State, 300 Ga. App. 59, 684 S.E.2d 129, 2009 Ga. App. LEXIS 1083 (2009). Trial court did not err in vacating the defendant’s sentence of 40 years confinement and resentencing the defendant as a recidivist to 20 years confinement because there was nothing in the record showing that the trial court failed to exercise the court’s discretion when the court imposed the sentence; the 20-year sentence the trial court imposed on resentencing was within the court’s discretion, as the sentence fell within the statutory limits for the offense for which the defendant was convicted, possession of cocaine with intent to distribute. Bush v. State, 305 Ga. App. 617, 699 S.E.2d 899, 2010 Ga. App. LEXIS 763 (2010). No modification of the defendant’s sentence or hearing was mandated because the trial court considered the positive evidence presented by the defendant, weighed that evidence with the evidence of the defendant’s prior criminal history, and the seriousness of the charge before pronouncing the sentence; the sentence was authorized by O.C.G.A.§ 16-13-30, and the record did not support the defendant’s ineffective assistance of counsel claim. Benford v. State, 316 Ga. App. 95, 729 S.E.2d 414, 2012 Ga. App. LEXIS 492 (2012). Even though the General Assembly reduced the punishment for possession of methamphetamine after the subject offense occurred, the trial court did not err in imposing a sentence within the range that existed at the time of the offense, and the sentence did not amount to cruel and unusual punishment. Thompson v. State, 332 Ga. App. 204, 770 S.E.2d 364, 2015 Ga. App. LEXIS 254 (2015), cert. denied, No. S15C1245, 2015 Ga. LEXIS 562 (Ga. Sept. 8, 2015). Section not ambiguous due to sentencing options. — O.C.G.A. § 16-13-30 was not ambiguous merely because the statute offered two options for sentencing, 16-13-30 ten to forty years or life imprisonment and, thus, the trial court was not required to utilize the rule of lenity. Waller v. State, 365 Ga. App. 693, 879 S.E.2d 865, 2022 Ga. App. LEXIS 491 (2022). Life sentence neither discriminatory nor disproportionate. — Mandatory life sentence for second violation of O.C.G.A. § 16-13-30 did not violate defendant’s equal protection or due process rights, nor was it disproportionate. Jackson v. State, 223 Ga. App. 471, 477 S.E.2d 893, 1996 Ga. App. LEXIS 1200 (1996). Trial court lacked discretion to suspend, probate or defer sentence. — When the defendant was twice convicted of selling cocaine, the trial court correctly held that the court lacked discretion to suspend, probate, or defer a portion of the defendant’s life sentence. Mosley v. State, 203 Ga. App. 275, 416 S.E.2d 736, 1992 Ga. App. LEXIS 499 (1992). Defendant held sentenced beyond statutory maximum. — See Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573, 1988 Ga. App. LEXIS 376 (1988). Maximum sentence appropriate. — 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). Merger of sentences by operation of law. — Convictions for possession of methamphetamine and criminal attempt to manufacture methamphetamine merged as a matter of fact since the state used the same conduct to establish commission of both crimes, namely the same methamphetamine oil found in a toilet; therefore, though it was permissible to prosecute defendant for each crime, defendant could not be convicted for both offenses and the possession conviction and sentence were vacated by operation of law on appeal. 390 Womble v. State, 290 Ga. App. 768, 660 S.E.2d 848, 2008 Ga. App. LEXIS 412 (2008). Merger of convictions. — Defendant’s conviction for manufacturing marijuana in violation of O.C.G.A. § 16-13-30(j)(1) should have been merged into the defendant’s conviction for trafficking in marijuana in violation of O.C.G.A. § 16-13-31(c) because the same evidence was used to prove both crimes, and the manufacturing count did not require proof of any fact which the trafficking count did not require. Preval v. State, 302 Ga. App. 785, 692 S.E.2d 51, 2010 Ga. App. LEXIS 226 (2010). 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). Trial court did not err in failing to merge the defendant’s convictions for possession of drug-related objects and possession of methamphetamine, each of which required proof that the other did not. Lee v. State, 347 Ga. App. 508, 820 S.E.2d 147, 2018 Ga. App. LEXIS 559 (2018). Waiver of notice required for life term. — Error by the trial court in imposing a life sentence when the defendant was not given formal notice prior to trial of the state’s intent to demand recidivist punishment was waived by the defendant’s failure to object at the time the state introduced the defendant’s prior drug conviction into evidence during the presentencing phase of the trial. Tillman v. State, 217 Ga. App. 269, 457 S.E.2d 228, 1995 Ga. App. LEXIS 387 (1995), cert. denied, No. S95C1204, 1995 Ga. LEXIS 909 (Ga. July 14, 1995). Term of 30-years imprisonment for sale of cocaine was not an abuse of discretion because, even though O.C.G.A. § 17-10-7(a) was not applicable, such term was within the statutory limits. 16-13-30 Covington v. State, 231 Ga. App. 851, 501 S.E.2d 37, 1998 Ga. App. LEXIS 538 (1998). Banishment. — It was proper for the trial court to banish the defendant from all areas of Georgia north of Interstate 20 after the defendant pled guilty to possession of cocaine. The sentence allowed the defendant to receive rehabilitative services while at the same time removing the defendant from an area where the defendant committed the defendant’s prior crimes and presumably had access to illegal drugs. Shook v. State, 300 Ga. App. 59, 684 S.E.2d 129, 2009 Ga. App. LEXIS 1083 (2009). Rule of lenity inapplicable. — Trial court did not err in failing to apply the rule of lenity because both of the defendant’s offenses, trafficking in methamphetamine and misdemeanor possession of marijuana, O.C.G.A. §§ 16-13-30(e) and 16-13-31(b), were classified as felonies, and thus, the rule of lenity did not apply. Fyfe v. State, 305 Ga. App. 322, 699 S.E.2d 546, 2010 Ga. App. LEXIS 628 (2010), cert. denied, No. S10C1942, 2011 Ga. LEXIS 229 (Ga. Feb. 28, 2011), overruled in part, McNair v. State, 293 Ga. 282, 745 S.E.2d 646, 2013 Ga. LEXIS 594 (2013), overruled in part, Maddox v. State, 322 Ga. App. 811, 746 S.E.2d 280, 2013 Ga. App. LEXIS 617 (2013). Because there was no uncertainty that O.C.G.A. § 16-13-30(c)(1) applied to the defendant’s sentencing, the rule of lenity was not applicable. Cooper v. State, 352 Ga. App. 783, 835 S.E.2d 724, 2019 Ga. App. LEXIS 628 (2019). Remand for resentencing required. — Because it was unclear which schedule, which Code section, and which sentencing range would apply to the substances the defendant pled guilty to selling, the defendant’s sentences had to be vacated and the case remanded to the trial court for a hearing to determine on which schedule the controlled substances at issue belonged, and to impose a lawful and appropriate sentence. Williams v. State, 320 Ga. App. 243, 739 S.E.2d 727, 2013 Ga. App. LEXIS 159 (2013). 391 16-13-30