Gillen v. State , 286 Ga. App. 616 ( 2007 )

SMITH, Presiding Judge.

In unrelated criminal actions, Victor Gillen and Margaret Marston pled guilty to trafficking in drugs. Gillen was sentenced to 15 years for trafficking between 200 and 400 grams of methamphetamine,¹ and Marston was sentenced to 25 years and a $1 million fine for trafficking 400 grams or more of cocaine.² 3*Because both cases concern whether the trial court had discretion to suspend or probate these sentences under the general sentencing provisions of OCGA § 17-10-1 (a) (1), we have consolidated them for purposes of appeal. We affirm in both cases, however, holding that the trial court did not err in finding that pursuant to the specific trafficking statute, OCGA § 16-13-31 (g) (1), it was without authority to probate or suspend the sentences.

Although OCGA § 17-10-1 (a) (1) gives the trial court authority to suspend or probate all or any part of a sentence, the trafficking statute clearly provides that an “adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld prior to serving the mandatory minimum term of imprisonment prescribed by this Code section.” OCGA § 16-13-31 (g) (1).³ And “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” (Citation, punctuation and footnote omitted.) Mann v. State, 273 Ga. 366, 368 (1) (541 SE2d 645) (2001). The trial court was therefore correct in its conclusion that it was without authority to suspend or probate the sentences. Moran v. State, 170 Ga. App. 837, 842 (3) (318 SE2d 716) (1984).

The dissent argues that the general sentencing statute should prevail over the specific trafficking statute. However, there simply is no “indication of a contrary legislative intent” in this case. The 2006 amendment (adding OCGA § 17-10-6.2 to the exception of OCGA § 17-10-1 (a) (1)) does not demonstrate a legislative intent for OCGA § 17-10-1 (a) (1) to prevail over the specific trafficking statute. The legislature simply chose to add another class of crimes to the exception. Indeed, OCGA § 17-10-6.1 has been an exception to OCGA § 17-10-1 (a) (1) since 1994, so the fact that OCGA § 17-10-1 (a) (1) “was the last enacted statute” because it was amended in 2006 is irrelevant.

The 2004 amendment is equally irrelevant. The General Assembly’s removal of “in conformity with any mandatory minimum sentences required by law” relates to the first sentence in OCGA § 17-10-1 (a) (1), requiring the judge to impose “a determinate sentence” for a specific number of months or years. It does not relate to, or have any bearing on, the second sentence of the Code section, the one at issue here, governing the trial court’s authority to suspend or probate.

Moreover, the maxim of expressio unius est exclusio alterius has never been used to resolve a conflict between two statutes. Rather, it is used to assume the deliberate omission of actions not listed in a statute and not otherwise addressed elsewhere. See, e.g., Hammock v. State, 277 Ga. 612, 615 (3) (592 SE2d 415) (2004) (mention in one subsection of statute that members of same family or household are excluded, and the lack of limiting language in two other subsections of statute, shows the legislature’s intent to allow those subsections to apply between co-inhabitants); Long v. State, 271 Ga. App. 565, 569 (2) (610 SE2d 74) (2005) (“OCGA § 40-6-392 deals only with ‘(Chemical tests for alcohol or drugs in blood’; it does not concern any other tests for sobriety, including the aleo-sensor test and field sobriety tests”).

Second, even if expressio unius est exclusio alterius could be applied to a conflict between two statutes, “it must appear that a complete enumeration or list normally would have included that which was omitted, thus making omission from the statute significant or indicative of legislative intent.” Long, supra. Because OCGA §§ 17-10-6.1 and 17-10-6.2 are statutes that define certain categories of crimes (serious violent offenses and sexual offenses) and provide the sentencing guidelines for those categories, it does not appear that the list of these two exceptions normally would have included OCGA § 16-13-31 or any other specific criminal statute. Instead, any omission would be significant only with regard to a statute that defines classes or categories of crimes. See, e.g., City of Atlanta v. Southern States Police Benevolent Assn. &c., 276 Ga. App. 446, 455 (3) (a) (623 SE2d 557) (2005) (statutory list of authorized third-party contractors not exclusive and maxim not applied).

“We must seek to effectuate the intent of the legislature, OCGA § 1-3-1 (a), and to give each part of the statute meaning and avoid constructions that make some language mere surplusage.” (Citations omitted.) Anderson v. State, 261 Ga. App. 716, 719 (583 SE2d 549) (2003). The dissent’s interpretation would make meaningless many statutes that employ similar language prohibiting the court from suspending, probating or deferring a sentence. See, e.g., OCGA §§ 16-8-14 (theft by shoplifting); 16-5-23.1 (battery); 16-7-1 (burglary); 16-6-13 (prostitution, pimping or pandering). This cannot be the intent of the legislature.

Judgments affirmed.

Andrews, P. J., Johnson, P. J., Ellington and Adams, JJ., concur. Miller, J., concurs specially and Barnes, C. J., dissents.

1 See OCGA § 16-13-31 (e) (2).

2 See OCGA § 16-13-31 (a) (1) (C).

3 We note that OCGA § 16-13-31 (g) (2) does provide that the trial court may reduce or suspend a sentence in certain circumstances not applicable here.