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Tabb v. State

Supreme Court of Georgia

November 12, 1982, Decided

No. 38611


 [*317]   [**229]  Jean Tabb appeals from her August 1980 conviction of possession with intent to distribute marijuana, amphetamines, methaqualone, and amobarbital/secobarbital in violation of the Georgia Controlled Substances Act (Code Ann. § 79A-801 et seq.). Varying quantities of all four drugs were discovered during a search of appellant's car and person on September 22, 1978. In this direct appeal, appellant contends that she was punished multiply for the same offense, that the warrant authorizing the search was improperly issued, and that the trial court erred in various evidentiary rulings. For reasons that follow, we affirm.

1. Appellant enumerates as error the trial court's denial of her motion for a new trial and motion to modify sentence. She argues that [***2]  the state may not, consistent with double jeopardy, impose multiple punishment for simultaneous possession of two or more drugs listed within the same schedule of the Controlled Substances Act.

Appellant was convicted of separate counts of possession with intent to distribute 128 amphetamine capsules, five methaqualone tablets, and one amobarbital/secobarbital pill. Each of these drugs is classified as a Schedule II controlled substance under Code Ann. § 79A-807. Appellant was sentenced to ten years' imprisonment on each count, with the sentences to run concurrently. Tabb contends that application of this statutory scheme to her violates double  [*318]  jeopardy 1 because it punishes her three times for a single act of possession of Schedule II drugs. We disagree.

 [***3]  In Howard v. State, 144 Ga. App. 208 (240 SE2d 908) (1977), the Court of Appeals addressed the precise question raised by appellant in this case and held that ] "[s]imultaneous possession of different proscribed [Schedule II] drugs may be multiply punished." Id. at 209. In deciding whether the statute as applied in Howard violates double jeopardy, 2 our touchstone is of course the intent of the General Assembly. "In making a judicial  [**230]  determination of whether multiple punishment is permissible, the question is: What did the legislature intend?" Haynes v. State, 249 Ga. 119, 123 (288 SE2d 185) (1982) (Marshall, Justice, dissenting).  Our inquiry begins with the language of the statute itself. Generally, where the language used by the legislature is plain and unambiguous, judicial construction is unnecessary. Board of Trustees v. Christy, 246 Ga. 553, 554 (272 SE2d 288) (1980); Gazan v. Heery, 183 Ga. 30 (187 SE 371) (1936). But where, as here, the words of the statute are inherently ambiguous, our task is to "look diligently for the intent of the General Assembly." Code Ann. § 102-102 (9).

 [***4]  Here the General Assembly has stated that "possess[ion] with intent to distribute any controlled substance" is a crime, and that "[a]ny person who violates [this statute] with respect to a controlled substance in Schedule II . . . shall be guilty of a felony and shall be punished by imprisonment for not less than five years nor more than 30 years." Code Ann. § 79A-811 (b) and (f) (1981 Supp.). (Emphasis supplied.) The controversy in this case centers around the meaning of the phrase "any controlled substance." Webster's Seventh New Collegiate Dictionary (1971) defines "any" as follows: "(1) One or some indiscriminately of whatever kind; (2) One, some or all indiscriminately of whatever quantity; (3) Unmeasured or unlimited in amount, number, or extent." Thus "any controlled substance" as  [*319]  used by the legislature in Code Ann. § 79A-811 could mean, alternatively, "one controlled substance," "some controlled substances," or "all controlled substances" which are listed in the Act.

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250 Ga. 317 *; 297 S.E.2d 227 **; 1982 Ga. LEXIS 1235 ***


Subsequent History:  [***1]  Rehearing Denied November 29, 1982.

Prior History: Drug violation; constitutional question. Early Superior Court. Before Judge Sheffield and Judge Bowen from Pataula Circuit.

Disposition: Judgment affirmed.


reliability, enumeration, detached, lapse, pills

Criminal Law & Procedure, Possession, Simple Possession, Elements, Governments, Legislation, Interpretation, Controlled Substances, General Overview, Commencement of Criminal Proceedings, Double Jeopardy, Search & Seizure, Search Warrants, Issuance by Neutral & Detached Magistrate, Courts, Authority to Adjudicate, Constitutional Law, Fundamental Rights, Warrants, Standards of Review, Clearly Erroneous Review, Motions to Suppress, Justice Courts, Preliminary Proceedings, Pretrial Motions & Procedures, Suppression of Evidence, Confidential Informants, Credibility, Reliability & Veracity, Probable Cause, Discovery & Inspection, Discovery by Defendant