Benton v

State, 356 Ga. App. 441, 847 S.E.2d 625, 2020 Ga. App. LEXIS 460 (2020), cert. denied, No. S21C0110, 2021 Ga. LEXIS 253 (Ga. Apr. 5, 2021). Authority to resentence defendant. — Because the trial court was correct that the court had imposed a sentence not allowed, the sentence was void and the trial court retained jurisdiction to resentence the defendant. Loveless v. State, 344 Ga. App. 716, 812 S.E.2d 42, 2018 Ga. App. LEXIS 130 (2018). Subsection (b) must be violated for life sentence to be mandatory. — Trial court erred in imposing life sentences upon counts two, three, and four of the 16-13-30 indictment when a defendant must have been convicted of violating O.C.G.A. § 16-13-30(b) in order for the imposition of a life sentence to be mandatory. Brown v. State, 204 Ga. App. 794, 420 S.E.2d 823, 1992 Ga. App. LEXIS 988 (1992). Motion to modify sentence inappropriate remedy. — Defendant’s claim that the trial court did not give defendant credit for time defendant spent in pretrial confinement when the court sentenced defendant after defendant pled guilty to charges of possession of cocaine with intent to distribute and possession of marijuana with intent to distribute was cognizable only in a mandamus or injunction action against the Commissioner of the Georgia Department of Corrections, or in a petition for habeas corpus, not in a motion to modify defendant’s sentence, and the trial court properly dismissed defendant’s motion to modify defendant’s sentence. Maldonado v. State, 260 Ga. App. 580, 580 S.E.2d 330, 2003 Ga. App. LEXIS 428 (2003). With regard to the defendant’s conviction for attempted possession of oxycodone with the intent to distribute and the sentence imposed of 30 years confinement as a recidivist, to serve 20 years in confinement and the remainder probated, the defendant was entitled to resentencing as the state conceded that the state failed to show that the defendant’s prior convictions were adjudged upon the advice of counsel or following a waiver thereof. Woodall v. State, 291 Ga. App. 484, 662 S.E.2d 549, 2008 Ga. App. LEXIS 535 (2008). Motion to correct void sentence. — Sentencing court should have dismissed the defendant’s motion to vacate a void sentence for lack of jurisdiction because the defendant’s motion presented no cognizable claim that a sentence was void as constituting punishment the law did not allow. The defendant only challenged the existence or validity of the factual or adjudicative predicate for the recidivist sentence. Kimbrough v. State, 325 Ga. App. 519, 754 S.E.2d 109, 2014 Ga. App. LEXIS 8 (2014). Because a more specific law applies to trafficking methamphetamine, the general provisions for manufacturing con- 383 Sentencing (Cont’d) trolled substances do not apply; there being no uncertainty as to which statute applies, the rule of lenity is not implicated. State v. Nankervis, 295 Ga. 406, 761 S.E.2d 1, 2014 Ga. LEXIS 538 (2014). Life sentence for conviction of a second offense. — Life sentence for conviction of a second offense was permissible when defendant had not been convicted of the first offense at the time defendant committed the second offense. Hailey v. State, 263 Ga. 210, 429 S.E.2d 917, 1993 Ga. LEXIS 478 (1993), cert. denied, 510 U.S. 1048, 114 S. Ct. 700, 126 L. Ed. 2d 667, 1994 U.S. LEXIS 169 (1994); Key v. State, 226 Ga. App. 240, 485 S.E.2d 804, 1997 Ga. App. LEXIS 487 (1997). After the defendant was convicted of trafficking in cocaine and conspiracy of trafficking in cocaine in 2011 and sentenced to two concurrent terms of life in prison, the defendant’s life sentence was proper because the defendant’s 2010 trafficking conviction pursuant to O.C.G.A. § 16-13-31 qualified as an actual conviction under O.C.G.A. § 16-13-30(b) to trigger the recidivist provisions of § 16-13-30(d) and enhance the defendant’s sentence for the 2011 trafficking conviction; and the legislature did not intend that violators of the more serious offense of trafficking be exempt from the severe punishment of § 16-13-30(d). Duron v. State, 340 Ga. App. 74, 796 S.E.2d 310, 2017 Ga. App. LEXIS 11 (2017), cert. denied, No. S17C0983, 2017 Ga. LEXIS 599 (Ga. June 30, 2017). Life sentence based on conviction under prior statute. — O.C.G.A. § 16-13-30(d) authorizes a life sentence only for a second violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., which was enacted in 1974. Thus, it does not include earlier convictions for crimes which would have been violations of the Act had they been committed after the effective date of the Act. Smith v. State, 193 Ga. App. 365, 387 S.E.2d 648, 1989 Ga. App. LEXIS 1427 (1989), superseded by statute as stated in Gilbert v. State, 208 Ga. App. 258, 430 16-13-30 S.E.2d 391, 1993 Ga. App. LEXIS 455 (1993). Prior conviction under federal law. — Life sentence may only be imposed for a second violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., and was not authorized since the prior offense used against the defendant was a federal drug conviction. Query v. State, 217 Ga. App. 61, 456 S.E.2d 704, 1995 Ga. App. LEXIS 340 (1995), cert. denied, No. S95C1168, 1995 Ga. LEXIS 791 (Ga. June 1, 1995). After federal convictions, state prosecutions barred on same conduct. — Threshold requirement of concurrent jurisdiction in O.C.G.A. § 16-1-8(c) was met in the defendant’s state prosecution because the Georgia crimes of manufacturing, delivering, or selling a controlled substance and attempt, O.C.G.A. §§ 16-13-30(a) and 16-13-33, were counterparts to the defendant’s federal convictions under 21 U.S.C. §§ 841(b)(1)(C) and 846. Calloway v. State, 303 Ga. 48, 810 S.E.2d 105, 2018 Ga. LEXIS 66 (2018). Defendant, sentenced to life under O.C.G.A. § 16-13-30(d) was not similarly situated to codefendant granted first offender probation for equal protection purposes because the codefendant was a first offender and defendant was convicted of seven other drug charges in addition to the sale of 200 grams or more of cocaine and had prior convictions for robbery and possession of cocaine with intent to distribute. Bell v. State, 252 Ga. App. 74, 555 S.E.2d 747, 2001 Ga. App. LEXIS 1204 (2001). Career offender implications. — Unpublished decision: Defendant’s conviction for possessing a counterfeit substance with intent to sell under O.C.G.A. § 16-13-30(i) was an offense under a state law that prohibited the possession of a counterfeit substance, and was punishable by imprisonment for a term exceeding one year; as such, the elements of the offense matched the plain language of U.S. Sentencing Guidelines Manual §§ 4B1.1 and 4B1.2, and the offense was sufficient to count towards defendant’s career offender status. Moreover, this interpretation was not 384 modified by the statutory definitions contained in 21 U.S.C. § 802(7), and nothing in 28 U.S.C. § 994 prevented the sentencing commission from using the commission’s authority in this manner. United States v. Smith, 156 Fed. Appx. 154, 2005 U.S. App. LEXIS 25382 (11th Cir. 2005), cert. denied, 547 U.S. 1048, 126 S. Ct. 1639, 164 L. Ed. 2d 349, 2006 U.S. LEXIS 2641 (2006). Unpublished decision: Defendant was properly sentenced as an armed career criminal because the defendant’s 1998 Georgia felony conviction for obstructing or hindering a law enforcement officer was a violent felony, and the defendant’s 1998 Georgia felony conviction for possessing marijuana with the intent to distribute fell squarely within the Armed Career Criminal Act’s definition of a serious drug offense. United States v. Dixon, 598 Fed. Appx. 704, 2015 U.S. App. LEXIS 1698 (11th Cir. 2015). Prior out-of-state convictions. — Defense counsel was not ineffective for failing to object to the trial court’s use of prior felonies defendant committed in California to sentence the defendant as a recidivist under O.C.G.A. § 17-10-7(c) as the elements of Cal. Health & Safety Code §§ 11054(f), 11350(a) (possession of cocaine) were sufficiently similar to those of O.C.G.A. §§ 16-13-26(1)(D) and 16-13-30(c); and the elements of Cal. Penal. Code § 211 (robbery) were sufficiently similar to those of O.C.G.A. § 16-8-40. Williams v.