15 Mass. App. Ct. 930 | Mass. App. Ct. | 1983
The defendant was convicted of distributing a controlled substance (heroin) in violation of G. L. c. 94C, § 32 (a), and the trial judge reported the question whether a sentencing judge had the power to suspend the apparent mandatory minimum one year term provided in § 32 (a). That question was resolved by the Supreme Judicial Court in Commonwealth v. Gagnon, 387 Mass. 567 (1982), and in Commonwealth v. Gagnon, 387 Mass. 768 (1982).
The judgment is reversed insofar as the indictment charges violation of G. L. c. 94C, § 32 (a), and the verdict is set aside insofar as it finds the defendant guilty of such violation. The case is remanded to the Superior Court, where a judge is to enter an order dismissing the indictment except as to the lesser included offense of possession of heroin. A verdict of guilty of that offense may be entered, and the defendant may be sentenced pursuant to G. L. c. 94C, § 34, which punishes the simple possession of heroin.
So ordered.