Belcher v. The State., 161 Ga. App. 442, 288 S.E.2d 299 (1982)
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Summary
Judgment affirmed. Quillian, C. J., and McMurray, P. J., concur.
Summary
Judgment affirmed. Quillian, C. J., and McMurray, P. J., concur.
Text
Glyndon C. Pruitt, William J. Porter, Jr., for appellant.
Appellant, Roger Dale Belcher, and his co-defendant, Tommy Lee Sharp, were convicted in Gwinnett County for "Trafficking in Cocaine," which is a violation of the Georgia Controlled Substances Act, Code Ann. 79A-811 (j). That code section provides: "Any person who knowingly . . . delivers . . . 28 grams or more of cocaine or any mixture containing cocaine, as described in Schedule II, in violation of this Chapter, shall be guilty of the felony of 'Trafficking in Cocaine.' If the quantity of the cocaine or mixture involved: (1) Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of five years and to pay a fine of $50,000." [1] The appellant was also convicted for the possession of a firearm during the commission of a felony in violation of Code Ann. 26-9908a. Appellant appeals his conviction of both offenses.
1. Appellant argues that because of the wording of the indictment which alleged the delivery of "more than twenty-eight (28) grams of cocaine," the prosecution must prove on trial that more than 28 grams of pure cocaine was present in the 113.3 grams of the substance shown to have been delivered by appellant to the GBI agents. A forensic chemist with the Georgia Crime Laboratory testified that his analysis identified the substance as being positive for cocaine.
An indictment is required to set forth the elements of the offense sought to be charged. Walker v. State,
The offense "Trafficking in Cocaine" as specifically charged by the indictment is committed whether cocaine is delivered in a pure form or whether the cocaine is present in a mixture containing other substances, as long as the quantity of the mass containing cocaine is more than 28 grams. A specific quantity of cocaine is not required to be present in the mixture in order to constitute a violation of Code Ann. 79A-811 (j). Compare Taylor v. State,
2. At the time of his arrest appellant was armed with a 9 millimeter automatic pistol. The appellant contends that Code Ann. 26-9908a does not prohibit possession of a firearm during the commission of a drug transaction which is a felony. Code Ann. 26-9908a provides in pertinent part: "Any person who shall have on his person a firearm . . . during the commission . . . any crime against or involving the person of another which is a felony shall be guilty of a felony." The evidence at trial showed that the appellant committed the felony offense of "Trafficking in Cocaine" when he delivered cocaine to two GBI agents in a restaurant parking lot. This evidence showed the commission of a felony "involving the person of another." Therefore, this case falls within the prohibition of the statute, the purpose of which is to avoid death or injuries to persons from firearms used in the commission of felonies.
3. Appellant's remaining enumerations of error are without merit.
Bryant Huff, District Attorney, Johnny R. Moore, Assistant District Attorney, for appellee.
1982
Notes:
1. The appellant was fined $1,000.00 instead of the mandatory $50,000.00; however, this issue was not raised at trial and will not be considered on appeal.
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This document cites
- Supreme Court of Georgia - OGLESBY v. THE STATE., 243 Ga. 690, 256 S.E.2.d 371 (1979)
- Supreme Court of Georgia - BELL v. THE STATE., 227 Ga. 800, 183 S.E.2.d 357 (1971)
- Supreme Court of Georgia - DE PALMA v. THE STATE., 225 Ga. 465, 169 S.E.2.d 801 (1969)
- Georgia Court Of Appeals - Walker v. The State., 146 Ga. App. 237, 246 S.E.2d 206 (1978)
- Georgia Court Of Appeals - Taylor Et Al. v. The State., 144 Ga. App. 534, 241 S.E.2d 590 (1977)
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