Platt v. State , 200 Ga. App. 784 ( 1991 )

McMurray, Presiding Judge.

Defendant was convicted and sentenced for trafficking in cocaine on September 21, 1989. Thereafter, on February 26, 1990, the trial court entered an order granting defendant’s motion for a new trial.

In granting the defendant’s new trial motion, the trial court observed that at trial the prosecution only “adduced testimony from Susan Strickland, of the State Crime Lab, that the substance which she tested was ‘positive for cocaine,’ and weighed more than 28 grams.” Thus, the trial court concluded that the State failed to prove defendant was in possession of cocaine or a mixture containing more than ten percent cocaine. In the trial court’s words: “To say a substance is ‘positive for cocaine’ is not to say that the substance is ‘cocaine.’ If that were the case, then a truckload of baby powder laced with two teaspoons of cocaine would test positive for cocaine and would authorize prosecution and conviction . . . for a trafficking level offense.”

On March 1, 1990, the State moved for reconsideration of the grant of the motion for a new trial. Responding to the State’s motion for reconsideration, the trial court entered an order on May 15, 1990, in which it “[reaffirmed] its order of February 26, 1990.” Continuing, in a separate paragraph, the trial court found the evidence “legally insufficient to sustain a conviction of Trafficking Cocaine, but . . . ample ... to sustain a conviction of possession of cocaine.” Accordingly, the trial court reassigned the case to amend the judgment of conviction “in a manner not inconsistent with this finding.” Subsequently, on August 16, 1990, defendant was sentenced for possession of cocaine and he appealed. Held:

Defendant contends the trial court erred when it modified the February 26, 1990, order granting his motion for a new trial because the modification was made after the expiration of the term in which the order was entered. This contention is without merit.

We recognize that, generally speaking, the power of the trial court to revise or vacate an order granting a new trial expires at the end of the term in which the order is entered. The general rule is inapplicable, however, where proceedings to revive the conviction were begun during the same term. Howard v. State, 194 Ga. App. 331 (1) (390 SE2d 415); Pledger v. State, 193 Ga. App. 588 (2) (a) (388 SE2d 425).

Court terms in Dougherty County begin on the second Monday in January, March, May, July, September and November. OCGA § 15-6-3 (15). It follows that the modification order was not umtimely because the State’s motion for reconsideration, which sought to revive the conviction, was filed before the end of the term in which the court entered the order granting a new trial.

2. Defendant takes the position that the order of May 15, 1990, simply reaffirmed the order granting the motion for a new trial and raised the bar of double jeopardy. Thus, defendant insists he could not be sentenced for cocaine possession. We disagree.

The trial court did not enter two separate orders — one granting the motion for a new trial and another finding the evidence sufficient to sustain a conviction for cocaine possession — when it ruled upon the State’s motion for reconsideration. Rather, the trial court entered one order on May 15, 1990. The overall effect of that order was to amend the order granting the motion for a new trial.

In amending the order granting the motion for a new trial, the trial court reaffirmed the order granting the motion for a new trial (since it was correct, in part) and this gives rise to some confusion. We think it is clear, however, that the trial court did more than simply reaffirm the order granting the motion for a new trial. It went on to find the evidence sufficient to sustain a conviction for cocaine possession. In our view, the trial court properly amended the order granting the motion for a new trial in such a fashion. See Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532).

Judgment affirmed.

Birdsong, P. J., Carley, Pope and Andrews, JJ., concur. Beasley, J., concurs specially. Sognier, C. J., Banke, P. J., and Cooper, J., dissent.