Mikell v. State ( 1999 )

Pope, Presiding Judge.

Samuel Mikell, Jr. was convicted of selling cocaine, distributing cocaine within 1,000 feet of a public housing project, and obstructing a police officer. The court sentenced Mikell to life imprisonment for the sale of cocaine, 40 years in prison for the cocaine distribution within 1,000 feet of a public housing project, and 12 months for the obstruction. Mikell appealed to this Court, and we affirmed the convictions and sentences in Mikell v. State, 231 Ga. App. 85 (498 SE2d 531) (1998).

The Supreme Court granted certiorari and reversed our finding that the trial court was required to apply the recidivist provision of OCGA § 17-10-7 (a) and sentence Mikell to the maximum term of 40 years for distributing cocaine within 1,000 feet of a public housing project for this, his second, conviction under OCGA § 16-13-32.5 (b). Instead, the Supreme Court held, the trial court was authorized to exercise discretion under OCGA § 16-13-32.5 (c) (2) and impose a sentence of five to forty years. Mikell v. State, 270 Ga. 467 (510 SE2d 523) (1999). Accordingly, our ruling as to the sentence imposed for the conviction of distributing cocaine within 1,000 feet of a public housing project is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The case is remanded to the trial court for a new sentencing hearing.

Sentence vacated and case remanded for resentencing.

Johnson, C. J., and Blackburn, J., concur. Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.