SMILEY v. STATE

BARNES, Judge.

David Smiley was convicted of cocaine possession under OCGA § 16-13-30 (a), and appeals his sentence of 30 years imposed under OCGA § 16-13-30 (c) and the recidivism statute, OCGA § 17-10-7. Smiley argues that his previous conviction for cocaine possession with the intent to distribute was not a previous conviction for cocaine possession, and therefore he should not have been sentenced for a second offense of cocaine possession under OCGA § 16-13-30 (d). We disagree and affirm.

We have held that a conviction for trafficking in cocaine under OCGA § 16-13-31 constitutes a second violation of possession with intent to distribute cocaine under OCGA § 16-13-30 (b), triggering the mandatory life sentence required by OCGA § 16-13-30 (d). Gilbert v. State, 208 Ga. App. 258, 260 (1) ( 430 S.E.2d 391) (1993). In that case, we said:

To conclude that Gilbert's prior conviction under OCGA § 16-13-31 does not trigger the recidivist provisions of OCGA § 16-13-30 (d) would lead to an illogical result since Gilbert's first conviction was for a more serious version of the offenses outlined in OCGA § 16-13-30 (b). It appears that OCGA § 16-13-30 (b) was a lesser included offense of Gilbert's conviction under OCGA § 16-13-31.

Id. Accord, Brundage v. State, 231 Ga. App. 478, 480 (4) ( 499 S.E.2d 408) (1998); Cody v. State, 222 Ga. App. 468, 471 (4) ( 474 S.E.2d 669) (1996).

A similarly illogical result would apply here if Smiley's previous conviction for possession with intent to distribute did not equal a conviction of simple possession that triggered the mandatory 30-year sentencing for a second simple possession offense under OCGA § 16-13-30 (c). Simple possession is a lesser included offense of possession with the intent to distribute See Burse v. State, 232 Ga. App. 729, 731 (2) ( 503 S.E.2d 638) (1998); Howard v. State, 220 Ga. App. 579, 583 (2) ( 469 S.E.2d 746) (1996). We find no error in Smiley's sentence.

Judgment affirmed. Blackburn, P.J., and Eldridge, J, concur.