*1 422
OPINION DAVIS, Appellant, Willis Kenneth BLISS, Judge: Presiding v. ' Davis, hereinafter re- Kenneth Willis Oklahoma, Appellee. The of STATE defendant, tried, charged, ferred to as was No. F-74-13. in District of Co- and convicted the Court Appeals of Oklahoma. Court of Criminal Oklahoma, County, for the offense manche April 10, 1974. Marijuana, of No. CRF-72- of Case Sale a punishment at term His was fixed
187. years penitentiary. in state (2) of two the timely a judgment From said and sentence appeal has this Court. perfected been to As a facts is not recitation of the neces- sary in the order to determine issue presented appeal, is on no recitation made defendant, The following: other than the twenty-four year at a old senior (24) Cam- Lawton, Oklahoma, College, was eron selling approximately (2) with charged two marijuana of an ounces to undercover nar- presented agent. After the its cotics State case, prima facie did not the defendant tes- states, as and brief “essen- tify defendant’s tially guilt his uncontested.” was proposition in The defendant’s sole error O.S.1971, is that 63 2-401(B)(2), which § the suspending bars trial court from or de- ferring allowing proba- or from sentences statute, a tion for of said is un- violation constitutional in it is an that encroachment upon by Legislature the the branch Judicial prohibited IV, 1 by Article of the Section Constitution, is in Oklahoma violation of protection process equal the and due clause clause, and cruel and further constitutes punishment by prohibited the unusual as United States and the Amend- Constitution agree. ments not thereto. doWe pertinent O.S.1971, portions The of 63 § are as 2-401 follows: by act, “A. Except authorized this it as any person: shall be unlawful for manufacture, distribute, “1. To dis- pense, or possess with intent to manufac- Glover, Beecham, ture, Roger distribute, dispense, Curtis D. E. or a controlled Dallas, Tex., appellant. substance; for dangerous Atty. Gen., Derryberry, create, Larry distribute, possess L. “2. To or James Gen., Wilkinson, Swartz, Atty. distribute, Asst. with intent a to counterfeit John Intern, Legal appellee. for controlled dangerous substance.
423 *2 BRETT, J., part sec- person violates this concurs in and dissents Any “B. who part. in respect to: tion with
“2. [*] Any [*] other controlled [*] [*] dangerous [*] [*] sub- BUSSEY, J., concurs. III, I, II, or in stance classified Schedule BRETT, Judge (concurring part in and felony be sen- of and shall guilty is a IV dissenting part) in : for not imprisonment a term of to tenced Insofar as appears defendant to admit than years nor more two (2) less than matter, his guilt in this I concur that the fine of not more years a ten and (10) affirmed; conviction be should but I dis- ($5,000.00). Thousand Dollars than Five part pertaining sent to that of the decision to subject not be sentence Such shall suspension to the of sentence as cited from sen- suspended provisions statutory for State, State, supra, Black v. v. Williamson tences, probation.” or sentences deferred State, supra, Doyle and v. supra. added) (Emphasis was appeal on precise issue raised The case by in the recent this
considered Court 941, Okl.Cr., State, P.2d 509
of Black v. follows: it was
wherein held as section argues that the defendant
“The Legislature that
is and unconstitutional constitutionally has limited exceeded its BRAND, Appellant, Jo Carol domain, judicial powers by invading the v. pro- possibility of denial the that the of INTERNATIONAL INVESTORS INSUR- pun- and constitutes cruel unusual bation Appellee. COMPANY, ANCE and process and due ishment violates No. 45649. of are equal protection the laws. of We properly Legislature that opinion the the Appeals Oklahoma, Court of of suspen- prohibit power its to exercised Division 2. as an given in a case sion of a sentence 22, Jan. 1974. power prescribe part of its to inherent Rehearing 15, Denied March 1974. punishment for which it has the acts prohibited as criminal.
“In [*] conclusion, [*] [*] we observe [*] that the [*] [*] pro- O.S.1971, 2-401, which
vision of 63 §
prohibits of a sentence suspension the enu-
upon the sale of the conviction of fur- items is We
merated constitutional. prohibition does
ther observe that such the upon represent
not an encroachment Legislature, nor by Branch the
Judicial Fifth, Eighth, same the does the violate
or Fourteenth Amendments to the Con-
stitution.” State, Okl.Cr., 510
See also Williamson v. Doyle State, Okl.Cr., 511
P.2d 27 and v. ap- judgment
P.2d 1133. The and sentence is, therefore,
pealed from
Affirmed.