Hogan v. State

193 Ga. App. 543 (1989)

388 S.E.2d 532

HOGAN v. THE STATE.

A89A1384.

Court of Appeals of Georgia.

Decided November 1, 1989.

Rehearing Denied November 15, 1989.

Robert H. Alexander III, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, Joseph J. Drolet, John M. Turner, Assistant District Attorneys, for appellee.

BENHAM, Judge.

In this appeal from his conviction for trafficking in cocaine, appellant complains that there was a fatal variance between the indictment and the evidence, that the trial court erred in charging the jury on trafficking, and that the trial court erred in denying appellant's motion for discharge based on the speedy trial provisions of OCGA § 17-7-170.

1. Appellant's first two enumerations of error concern the conflict between the indictment's allegation that appellant possessed more than 28 grams of cocaine and the proof that he actually possessed 24 grams. The State concedes that it only proved possession of 24 grams of a mixture containing cocaine, but asserts that since possession of cocaine is an offense included within trafficking (see Dalton v. State, 249 Ga. 720 (1) (292 SE2d 834) (1982)), the case should be remanded to the trial court for sentencing for that offense. We agree. "Since the evidence was adequate to support appellant's conviction [for possession of cocaine], the case is remanded with direction that a conviction and sentence be entered for that offense." Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981).

2. Appellant's final enumeration of error is directed at the trial court's denial of his motion for acquittal for failure to try him in accordance with his demand for trial pursuant to OCGA § 17-7-170. However, at the hearing on the motion, trial counsel (different from *544 appellate counsel) admitted that he had mistakenly represented to the court during the second term that no demand had been filed on appellant's behalf. A demand for trial may be waived by counsel (Parker v. State, 135 Ga. App. 620 (4) (218 SE2d 324) (1975)), and we find counsel's assurance to the court that no demand was pending to be such an act. There was, therefore, no error in the denial of appellant's motion for acquittal.

Judgment vacated and case remanded with direction. Deen, P. J., and Birdsong, J., concur.