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Old 12-23-2009, 11:59 PM
YourFriendlyDA YourFriendlyDA is offline
Metro Atlanta ADA

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Originally Posted by miami2009 View Post
Thank you for the responses so far.

Basically, my boyfriend was arrested on 2 charges:
1. Possesion of marujana ( a small amount found in a shoe)
2. Intent to distribute a separate batch of marujana (200 dollars worth found in a wardrobe of a locked bedroom, where the co-defendant was sleeping, my BF was in the living room, it wasn't even his house)

So, he pleaded guilty to the first charge (possesion), which meant he violated his probation. He was given to years for this. He only agreed to this if the 2nd charge was dropped to a misdemeanour, which is what it said on the legal document, signed by the 3 parties. However, when his attorney went to sort the 'misdemenour' out, the DA said it was no longer a misdemeanour.
Let me see if I understand.
ct 1 - poss of marijuana - a "small amount" in georgia is less than an ounce and is only a misdemeanor
ct 20 poss of marijana WID (with intent to distribute) - must be a felony if the charge remains as is.

We can play with WID counts because in order for less than an ounce to be a felony it must be packaged for distribution or have some other evidence tending to support intent (scales, lots of small bills etc). $200 is a well under and ounce so I'm guessing that it was the packaging that bit him.

As for sentencing... ct 1 can only carry a year since its a misd. They can only take 2 years of his felony probation for a misdemeanor violation. Ct 2, as a felony, can result in the revocation of the balance of the probation.

I'm a little confused as to the plea. In georgia a prosecutor can orally amend an indictment or accusation with the consent of the defendant in open court. This is done by stating on the record "I'm amending ct 2 to the lesser included offense" or "I'm reducing ct 2 to ______". I've knocked armed robbery charges to disorderly conducts so anything is possible. BUT a defendant cannot "split" an indictment. You cant plea on one charge and fight the other. Any plea that is entered must be done to the document as a whole so I'm not sure what he was doing with the misdemeanor.

So... to answer your question in a roundabout way... I'm not sure. If the indictment was signed and the amendment was made to the face of it then its a done deal. I'm guessing that this was a pretrial conference calendar and thats why the judge wasnt there -- but that shouldnt change anything if the document was signed.

Can you clarify a couple of things?
1 - is the probation in the same county - and if it is, does the judge hearing this case have authority to deal with the existing probation?

2- is there only one pending charge or are there 2 indictments at issue?

3 - has probation already done a revocation?

4 - the "document" that you refer to - is it a court rights waiver form or something else?

5 - is the DA handling the probation the same on handling the open case?

hope i can help...
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