Opinion
61931.
DECIDED MAY 19, 1981.
Drug violation. Fulton Superior Court. Before Judge Langford.
Lawrence L. Washburn III, Sharon A. Shade, for appellant.
Lewis R. Slaton, District Attorney, Margaret V. Lines, Scott Childress, Joseph J. Drolet, Assistant District Attorneys, for appellee.
The defendant appeals his conviction for violation of the Georgia Controlled Substances Act. Held:
The defendant contends the trial court erred in failing to recharge the jury when the jury requested clarification of the original instructions.
After the trial judge instructed the jury, the following request was made by the jury: "We the jury request any information concerning the penalty for this offense, if available. With both counsels' agreement the trial judge composed the following answer: "That is not a matter for the consideration of the jury."
Subsequently, when the jury was sent to lunch the trial judge stated: "When you return from lunch, I will send in my response to your earlier inquiry, and you can then resume your deliberations." Defense counsel asserts that the response was not given to the jury. However, the record is merely silent in this regard.
Nevertheless, despite whether the jury received the judge's response to their inquiry, we find no merit in defense counsel's argument that this constituted a failure to recharge the jury on a particular point regarding which they requested instructions, within the meaning of such cases as Edwards v. State, 233 Ga. 625, 626 ( 212 S.E.2d 802); Freeman v. State, 142 Ga. App. 293 (4) ( 235 S.E.2d 560); Whitfield v. State, 143 Ga. App. 779 (1) ( 240 S.E.2d 189) and others.
The judge, not the jury, determines the sentence (Code Ann. § 27-2503; Ga. L. 1974, pp. 352, 357) and the failure to give a charge with regard to sentencing matters is not error. Smokes v. State, 136 Ga. App. 8 (5) ( 220 S.E.2d 39); Stanley v. State, 136 Ga. App. 385 (2) ( 221 S.E.2d 242). See Mayo v. State, 139 Ga. App. 520 (1) ( 229 S.E.2d 16), wherein it was held: "It is error to instruct the jury as to a possible sentence in a felony case before the jury has determined the question of guilt or innocence. Ford v. State, 232 Ga. 511, 518 (14) ( 207 S.E.2d 494); Moore v. State, 228 Ga. 662, 665 (5) ( 187 S.E.2d 277); Harris v. State, 234 Ga. 871, 873 ( 218 S.E.2d 583)." Accord, Hill v. State, 144 Ga. App. 259 (2) ( 241 S.E.2d 44); Evans v. State, 146 Ga. App. 480 (2) ( 246 S.E.2d 482). Judgment affirmed. McMurray, P. J., and Pope, J., concur.