Wilson v. State , 295 Ga. App. 545 ( 2009 )

672 S.E.2d 516 (2009)

WILSON
v.
The STATE.

No. A08A2232.

Court of Appeals of Georgia.

January 14, 2009.

Eric D. Hearn, Zebulon, for appellant.

Scott L. Ballard, Dist. Atty., Robert W. Smith, Asst. Dist. Atty., for appellee.

SMITH, Presiding Judge.

A jury found Thomas Wilson guilty of possession of cocaine with the intent to distribute, abandonment of dangerous drugs, tinted tag cover, fleeing and attempting to elude, and trafficking in cocaine. Wilson argues on appeal that the trial court erred by: (1) failing to merge his conviction for possession of cocaine with the intent to distribute with his trafficking in cocaine conviction, and (2) modifying his sentence outside of his presence and without his knowledge. For the reasons set forth below, we vacate the trial court's sentence in part and remand this case to the trial court for resentencing.

1. Wilson contends the trial court erred by sentencing him separately for his trafficking and possession with intent to distribute convictions because both convictions are supported by identical evidence: a mason jar filled with 62.45 grams of crack cocaine. We agree. "[P]ossession of cocaine with intent to distribute is a lesser included offense of trafficking." Pitts v. State, 260 Ga.App. 553, 563(8)(b), 580 S.E.2d 618 (2003). The trial court, therefore, should have merged Wilson's conviction for possession of cocaine with the intent to distribute with his trafficking conviction. Nunery v. State, 229 Ga.App. 246, 247(1), 493 S.E.2d 610 (1997). Consequently, we vacate Wilson's sentence on these counts and remand this case to the trial court for resentencing. Id.

2. Wilson's remaining enumeration of error is rendered moot by our holding in Division 1.

Judgment vacated in part and case remanded with direction.

MIKELL and ADAMS, JJ., concur.