Winnie Taru Woods was convicted by a jury of criminal attempt to possess marijuana with intent to distribute under OCGA § 16-13-33. After verdict, but before sentencing, Woods filed a motion to declare OCGA § 16-13-33 unconstitutional and to impose sentence pursuant to OCGA § 16-4-6. The former Code section is a sentencing provision of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq., which prescribes that one convicted of attempt or conspiracy to violate the Georgia Controlled Substances Act is subject to “the maximum punishment for the offense, the commission of which was the object of the attempt or conspiracy.” Woods asserts that OCGA § 16-13-33 violates due process, the Eighth Amendment bar against cruel and unusual punishment, and the rule of lenity, because OCGA § 16-4-6 b, which governs sentencing for the general offense of criminal attempt, prescribes a maximum sentence of only one-half the maximum sentence for the crime attempted. After rejecting the constitutional challenge, the trial court sentenced Woods under OCGA § 16-13-33 to ten years imprisonment, the maximum punishment for the underlying offense of possession of marijuana with intent to distribute. See OCGA § 16-13-30 j 1 and 2. Woods appealed to this Court invoking our exclusive jurisdiction over constitutional issues. 1. It is incumbent upon the Court to question its jurisdiction in all cases in which jurisdiction may be in doubt. Rowland v. State , 264 Ga. 872 1 452 SE2d 756 1995. Although not raised by the State, we inquire into whether a constitutional challenge to a sentencing statute is timely if asserted after verdict, but prior to sentencing.
The law is clear that a constitutional attack on a statute under which a criminal defendant is prosecuted “must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the jury.” Punctuation omitted. Perez-Castillo v. State , 275 Ga. 124, 125 562 SE2d184 2002. See also Hardeman v. State , 272 Ga. 361 529 SE2d 368 2000; Kolokouris v. State , 271 Ga. 597 1 523 SE2d 311 1999. The rationale for that rule is that ” ‘a party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ Cit.” Rowe v. State , 266 Ga. 136, 137 2 464 SE2d 811 1996. Here, Woods filed his constitutional challenge and supporting brief shortly after the guilty verdict was returned, at a time when corrective action was still possible.1 The State had adequate advance notice of the motion and the basis for the constitutional attack; it neither objected to the timeliness of filing nor claimed disadvantage. To the contrary, the State had researched the issue and was well prepared with argument and authority in opposition to the claim. Nothing about the proceedings would have been altered had the motion been made earlier. It would be unreasonable to require a criminal defendant to challenge a sentencing statute prior to verdict because a potential acquittal would obviate the need for such action. In fact, it is questionable whether the defendant would even have standing to assert such a claim prior to the time that the statute is imposed against him. See Green v. State , 244 Ga. 755 262 SE2d 68 1979; Kryder v. State , 212 Ga. 272 2 91 SE2d 612 1956. Under the circumstances, we hold that the constitutional challenge to the sentencing statute was made at the first opportunity and, therefore, was timely. See State v. Mann , 602 NW2d 785 Iowa 1999.
