Coffey v. State , 141 Ga. App. 254 ( 1977 )

141 Ga. App. 254 (1977) 233 S.E.2d 243

COFFEY
v.
THE STATE.

53370.

Court of Appeals of Georgia.

Submitted January 31, 1977. Decided February 9, 1977.

Milton F. Gardner, for appellant.

Joseph H. Briley, District Attorney, Charles D. Newberry, Assistant District Attorney, for appellee.

BELL, Chief Judge.

Defendant was convicted and sentenced to five years confinement for the unlawful possession of marijuana in violation of the Georgia Controlled Substances Act. Held:

1. The indictment charged the defendant with the possession of an unspecified amount of marijuana in violation of the Georgia Controlled Substances Act. Code § 79A-811(j). The evidence showed without dispute that the amount of marijuana found in defendant's mobile home was in excess of nine ounces. The trial court did not charge the jury that it must specially find the quantity of marijuana possessed by defendant. On return of a verdict of guilty, the trial court sentenced the defendant for a felony. There was no error. Possession of marijuana is a felony under Code § 79A-811 (j) except, as provided under Code § 79A-9917, where the possession is one ounce or less, in which case the crime is a misdemeanor. Whether defendant shall be found guilty of a felony or misdemeanor (possession of one ounce or less) and where trial is had in a superior court, depends upon the proof at trial. Latimer v. State, 134 Ga. App. 372 (214 SE2d 390). As the evidence was not in conflict as to the amount, it was not necessary for the court to charge the jury that it must find the amount specially. On return of a general verdict of guilty to this indictment a sentence for a felony was authorized.

2. The evidence authorized the conviction and sentence as there was evidence adduced from which the jury could find that defendant was in possession of more than nine ounces of marijuana.

Judgment affirmed. McMurray and Smith, JJ., concur.