Stinnett v. State , 132 Ga. App. 261 ( 1974 )

132 Ga. App. 261 (1974) 208 S.E.2d 16

STINNETT
v.
THE STATE.

49196.

Court of Appeals of Georgia.

Submitted April 1, 1974. Decided June 20, 1974. Rehearing Denied July 3, 1974.

Glenn Zell, for appellant.

Richard Bell, District Attorney, Thomas O. Duvall, Jr., for appellee.

BELL, Chief Judge.

The indictment in the case charged the defendant with possession of an unspecified amount of marijuana. Upon trial in the superior court he was convicted and sentenced for a felony. The evidence at trial showed that the amount possessed was more than one ounce. At the post conviction hearing the trial judge charged the jury that the maximum authorized punishment was a $2,000 fine or imprisonment for not more than two years or by both such fine and imprisonment. Evidence of one previous conviction for a violation of a statute of the United States relating to marijuana was received by stipulation. The jury fixed the sentence at a $2,000 fine and two years confinement. Defendant was sentenced accordingly. Held:

There is no merit in the contention that the failure to allege in the indictment the amount of marijuana possessed is a fatal defect which voids the conviction and sentence or in the alternative that the indictment only charges a misdemeanor. Possession of any amount of marijuana is a felony except where the defendant is a first offender with respect to drug offenses and the amount possessed is one ounce or less. Code Ann. §§ 79A-9915, 79A-9917. While it is necessary to plead the amount of marijuana possessed and whether the defendant is a first offender where trial is to be had in an inferior court having jurisdiction over misdemeanors only (Kent v. State, 129 Ga. App. 71 (198 SE2d 712)), there is no requirement to plead this matter in an indictment or accusation where trial is to be had in a superior court which has concurrent jurisdiction over felonies and misdemeanors. Upon trial in a superior court, whether the defendant shall be found guilty of a felony or misdemeanor, depends upon the proof of the amount of marijuana possessed and the prior record of the defendant.

Judgment affirmed. Quillian and Clark, JJ., concur.