Hammock v. State

146 Ga. App. 339 (1978)

246 S.E.2d 392

HAMMOCK v. THE STATE.

55899.

Court of Appeals of Georgia.

Argued May 22, 1978.

Decided June 20, 1978.

F. Robert Raley, John E. Simmons, for appellant.

W. Donald Thompson, District Attorney, Willis B. Sparks, Assistant District Attorney, for appellee.

BELL, Chief Judge.

The defendant along with seven others was charged in the indictment with the offense of "Conspiracy to commit a crime" by conspiring, agreeing, and conspiring with each other by the delivering, selling, possessing, etc., specified controlled substances in violation of Section 79A-811(b) of the Georgia Controlled Substances Act. The indictment alleged numerous overt acts in furtherance of *340 the conspiracy. The jury returned a guilty verdict and defendant was sentenced to ten years imprisonment. Held:

1. Defendant on appeal contends that his sentence to ten years was excessive as a matter of law and therefore void. The argument is made that the indictment charged defendant with violating Code § 26-3201, "Conspiracy to Commit a Crime" which would permit a maximum confinement penalty of only 5 years. The defendant bases his argument primarily on the descriptive words appearing in the indictment "Conspiracy to commit a crime." The name given a crime in an indictment is not what characterizes it; the descriptive language in the presentment is the controlling factor. State v. Eubanks, 239 Ga. 483 (238 SE2d 38). The allegations here very plainly and unambiguously charge defendant with a violation of Code § 79A-812. It provides: "Any person who attempts or conspires to commit any offense defined in this Chapter shall be punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." The indictment charged a violation of this statute. On conviction a sentence to ten years imprisonment was within the authorized maximum under Code § 79A-811 (b).

2. Defendant for the first time on appeal urges that as applied to him Code § 79A-812 is unconstitutional. This issue presents nothing for consideration by the appellate courts. Frashier v. State, 217 Ga. 593 (124 SE2d 279).

Judgment affirmed. Shulman and Birdsong, JJ., concur.