Opinion
September 11, 1972.
November 16, 1972.
Criminal Law — Sentence — Possession of marijuana — The Controlled Substance, Drug, Device and Cosmetic Act — Applicability to all cases not final as of its effective date — Term of imprisonment contingent upon quantity of marijuana possessed.
1. The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. , is applicable to all cases not final as of its effective date.
2. Under The Controlled Substance, Drug, Device and Cosmetic Act, the term of imprisonment which may be imposed is contingent upon the quantity of marijuana possessed.
3. Defendant appealed from a sentence of one to two years imprisonment following his plea of guilty to charge of possessing marijuana.
It was Held that the case should be remanded to the court below with instructions that the quantity possessed be determined and a sentence be then imposed consistent with the precepts of the new act.
Submitted September 11, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 442, Oct. T., 1972, from sentence of Court of Common Pleas of Berks County, No. 585 of 1971, in case of Commonwealth of Pennsylvania v. Kenneth Lee Evans. Case remanded.
Indictment charging defendant with illegal possession of marijuana. Before BERTOLET, J.
Plea of guilty and judgment of sentence entered thereon. Defendant appealed.
Robert P. Grim, Assistant Public Defender, for appellant.
Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.
This is a direct appeal from appellant's sentence of one-two years in prison following his plea of guilty to the charge of possessing marijuana. Appellant contends that the sentence was excessive.
The Controlled Substance, Drug, Device and Cosmetic Act applies to all cases not final as of June 14, 1972, the effective date of the act. As this appeal was pending on that date, the judgment in the instant case was not then final. Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972). Thus, the said act applies herein.
Act of April 14, 1972 (P.L. 64), 35 P. S. § 780-101 to 780-143; repealing the Act of September 26, 1961 (P.L. 1664).
The lower court record does not indicate the quantity of marijuana which the appellant was convicted of possessing. This court, therefore, cannot determine whether or not the one-two year sentence is in accord with the statute. Under the new act, the term of imprisonment which may be imposed is contingent upon the quantity of marijuana possessed. We remand this case to the Court of Common Pleas of Berks County with instructions that the quantity possessed be determined and a sentence be then imposed consistent with the precepts of the new act.