Rawls v. State , 210 Ga. App. 408 ( 1993 )

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210 Ga. App. 408 (1993) 436 S.E.2d 527
RAWLS
v.
THE STATE.
A93A2102.
Court of Appeals of Georgia.
Decided September 27, 1993.
Dwight L. Thomas, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.

BLACKBURN, Judge.

On June 26, 1992, an indictment was returned against appellant, Frederick Rawls, charging him with trafficking in cocaine. Pursuant to *409 North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), Rawls pled guilty to the lesser included offense of possession of cocaine with intent to distribute, a violation of OCGA § 16-13-30 (b). Under OCGA § 16-13-30, the penalty for that offense consists of various terms of imprisonment, but no monetary fines. The trial court, however, sentenced Rawls to 20 years' imprisonment and ordered him to pay a fine of $100,000, a penalty fee pursuant to OCGA § 15-21-73 of $50, a jail fee of $10,000, and a D.A.T.E. fee of $50,000. On appeal, Rawls argues that the trial court improperly imposed fines, in the absence of statutory authority or a probated sentence. The State concedes this issue, and we agree.

As noted above, the statutory penalty for possession of cocaine with the intent to distribute does not include a monetary fine. OCGA § 17-10-8 allows for the imposition of a fine as a condition of probation, but "[w]here the trial court does not award probation, the imposition of a fine in addition to a prison sentence is outside the trial court's discretion. ..." (Citations and punctuation omitted.) Wood v. State, 204 Ga. App. 467, 469 (419 SE2d 534) (1992) (also involving a conviction for possession of cocaine with intent to distribute). Additionally, the imposition of a penalty pursuant to OCGA § 15-21-73 can only attach to properly imposed fines. See OCGA § 15-21-73 (a) (1). And finally, imposition of a D.A.T.E. fee also requires a lawfully imposed fine. OCGA § 15-21-100 (a). Accordingly, those portions of Rawls' sentence imposing the $100,000 fine, the $50 penalty, and the $50,000 D.A.T.E. fee are vacated.

Judgment vacated in part. McMurray, P. J., and Johnson, J., concur.