Holbert v. State

Beasley, Judge.

Defendant appeals from the denial of his motion for modification of probation. Defendant’s original sentence for trafficking in cocaine (count one) and attempted trafficking in cocaine (count two) was 25 years, 15 years in confinement with the remaining 10 years probated. Among the terms of his probation was a requirement that defendant pay a $250,000 fine for trafficking in cocaine and $100,000 fine for attempting to traffic in cocaine.

Defendant’s conviction for trafficking in cocaine was reversed by this court in Quinn v. State, 171 Ga. App. 590 (320 SE2d 827) (1984). He now contends that the imposition of a $100,000 fine as a condition of probation was invalid, illegal and void and it was therefore error to deny his motion to modify sentence.

Under OCGA § 17-10-8 the trial court may impose a fine upon a person convicted of a felony as a condition to placing him on probation. “The fine shall not exceed $10,000 or the amount of the maximum fine which may be imposed for conviction of such a felony, whichever is greater.” Id. Since the offense of attempted trafficking in cocaine, OCGA § 16-13-33, is punishable by imprisonment but contains no provision for a fine, the maximum fine which may be imposed as a condition of probation is $10,000. Shelton v. State, 161 Ga. App. 524, 525 (2) (289 SE2d 768) (1982); Todd v. State, 172 Ga. App. 231 (1) (323 SE2d 6) (1984).

Decided January 7, 1986. William P. Bailey, for appellant. Barrell E. Wilson, District Attorney, for appellee.

The imposition of an unauthorized fine is void (Castillo v. State, 166 Ga. App. 817, 824 (7) (305 SE2d 629) (1983)), and such issue is properly raised by a motion to modify sentence. McCranie v. State, 157 Ga. App. 110, 111 (2 & 3) (276 SE2d 263) (1981).

The judgment is therefore reversed with direction that the defendant be resentenced in conformity with the mandate of this opinion.

Judgment reversed with direction.

Been, P. J., and Pope, J., concur.