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Lovain v. State

The trial court properly sentenced defendant for attempted possession of a Schedule II drug based on his conviction for attempting to purchase a substance with the appearance of crack cocaine.

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A Whitfield County jury found Randy Blake Lovain guilty of attempted “Violation of the Georgia Controlled Substances Act, in violation of OCGA § 16-13-30, in that he did perform an act to wit: purchasing a piece of a nut having the appearance of a crack cocaine rock from an undercover police officer.” Lovain appeals and, in his sole enumeration of error, contends that the trial court erred in sentencing him to ten years, serve four, balance probated. He claims that the indictment failed to specify that he was being charged with attempted possession of crack cocaine, a Schedule II drug, which offense carries a penalty of between two and fifteen years under OCGA § 16-13-30 e. Lovain contends that, under the indictment, he might just as easily be guilty of attempted possession of a Schedule III, IV, or V drug under OCGA § 16-13-30 g, which offense carries a maximum penalty of five years. He asserts that an accused is entitled to have the lesser of two penalties apply where any uncertainty exists as to which penal clause applies.

We agree with Lovain’s last assertion. It has long been the law that “where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.”1 Clearly, however, this is not a case where there is such uncertainty. The indictment charged Lovain with attempting to purchase a substance with the appearance of crack cocaine. The jury found him guilty of attempting to purchase such substance. Under any reading of the indictment, Lovain was trying to buy a rock of crack cocaine from an undercover officer.

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