Smith v. State

Andrews, Judge.

After being indicted for conspiracy to sell and distribute cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-30), Smith was convicted by a jury of conspiracy to unlawfully sell a non-controlled substance in violation of OCGA § 16-13-30.1. Smith claims his conviction cannot stand because he was not charged with a violation of OCGA § 16-13-30.1 in the indictment, nor was it a lesser included offense of the offense charged in the indictment.

Viewing the evidence in a light most favorable to the conviction (Gurlaskie v. State, 196 Ga. App. 794-795 (397 SE2d…