McClendon v. StateMcClendon v. State
Kenneth E. McClendon was convicted for the unlawful possession of cocaine. His sentence of five years’ imprisonment was suspended and he was placed on three years’ probation. On appeal, McClendon argues that his conviction was barred on principles of former jeopardy. We disagree.
The facts are undisputed. On the night of October 12, 1985, McClendon had both marijuana and cocaine in his possession. That same night, he was arrested and charged by municipal complaint for the personal possession of marijuana, a violation of
On October 26, 1985, McClendon pleaded guilty in municipal court to the misdemeanor possession of marijuana and was fined $200 plus costs. On January 15, 1986, he was indicted for the possession of cocaine, a felony.
On March 31, 1986, McClendon filed a motion to dismiss alleging jeopardy under Vogel v. State, 426 So.2d 863 (Ala.Cr.App. 1980), affirmed on another ground, writ quashed as to instant issue, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), which held that the simultaneous possession of several types of drugs where the fact of possession occurs at the same time and in the same place, constitutes but one offense of possession. “It is thus our holding that where, as here, there is but a single point of control in time and place over several types of controlled substances, only a single offense has been committed, the offense of possession of controlled substances, and only one sentence is authorized.” Vogel, 426 So.2d at 882. We find that the misdemeanor offense of possession of marijuana for personal use and the felony offense of possession of cocaine are separate crimes and, thus, may be separately punished.
The Vogel holding was based upon the constitutional principles of double jeopardy found in
In Sears v. State, 479 So.2d 1308 (Ala.Cr. App.1985), this court found that Vogel‘s prohibition against multiple punishments for the same offense did not apply to the accused, who had been convicted and sentenced for both felony possession of controlled substances under
Applying the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Sears court concluded that although the violations of
Applying the Blockburger test to felony possession of cocaine and to misdemeanor possession of marijuana, as outlined in
On the other hand, every statutory element of the offense of felony possession of a controlled substance is required in order to prove misdemeanor possession of marijuana. The felony offense requires merely “possess[ion] [of].... controlled substances.”
“The test is symmetrical. It is satisfied only if each offense requires proof of elements not required by the other offense(s). Occasionally courts ignore this requirement and misapply the test. See United States v. Herbert, 698 F.2d 981, 985 (9th Cir.) (conspiracy and aiding and abetting separate offenses because only conspiracy requires proof of prior agreement to commit offense; court does not identify any element of aiding and abetting not required by conspiracy), cert. denied, 464 U.S. 821 [104 S.Ct. 87, 78 L.Ed.2d 95] (1983); United States v. Peacock, 654 F.2d 339, 349 (5th Cir.1981) (mail fraud and RICO violations separate offenses because RICO requires proof of additional facts; court does not identify any element of mail fraud not required by RICO), cert. denied, 464 U.S. 965 [104 S.Ct. 404, 78 L.Ed.2d 344] (1983).”
Fifteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1984-85, 74 Geo. L.J. 499, 739 n. 801 (1986).
In Sears, the Blockburger test was not symmetrically applied. On reflection, it appears that while the offense of trafficking in cocaine requires one element which is not required for felony possession of a controlled substance, that being the possession of 28 grams or more of cocaine, the offense of felony possession does not have a statutory element which is not required for a trafficking conviction.
The result in Sears remains correct, however, for the same reason that the sentencing in the case before us is correct. Although
The Blockburger test is not a constitutional component of the Fifth Amendment Double Jeopardy Clause, Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 678, but is merely a “`rule of statutory construction‘, and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” Missouri v. Hunter, 459 U.S. at 367, 103 S.Ct. at 679 (quoting Albernaz v. United States, 450 U.S. at 340, 101 S.Ct. at 1143 (emphasis added by the Missouri v. Hunter Court). The assumption underlying the Blockburger rule is that ordinarily the legislative branch does not intend to punish the same offense twice, Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 1672, 84 L.Ed.2d 740 (1985); Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980). However, here the intent of the legislature was clearly to treat the possession of marijuana for personal use differently from the possession of other controlled substances, see Palmer v. State, 54 Ala.App. 707, 312 So.2d 399, 403 (1975) (“The clear intention of the Legislature of Alabama ... was to provide a lesser punishment for persons found in possession of Marihuana for their personal use on first offense.“). For this reason, the Double Jeopardy Clause is not violated by the imposition of multiple punishments, in a single trial, for two drug offenses arising out of the same occurrence. See United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Ball v. United States, supra; Ohio v. Johnson, supra, Missouri v. Hunter, supra. See also Sears v. State, supra; Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982), reversed on other grounds, 435 So.2d 1365 (Ala. 1983).
In our judgment, Vogel v. State does not prevent multiple punishments for the defendant‘s conduct because his possession of marijuana for personal use and his possession of cocaine, although occurring at the same time and in the same place, constitute separate offenses.
“In Vogel, the result was dictated by the legislature‘s failure to explicitly state the unit of the offense; by the violation of a single provision of a statute which imposes no differentiating sentence; and by the consequence that elements of proof would have been the same had the conduct of possession been fragmented to form the basis of a separate charge.” Sears v. State, 479 So.2d at 1313.
As it applies to the facts of the case before us, Section 20-2-70(a) does state the unit of the offense, impose a differentiating sentence, and require different elements of proof for the offense of possession of marijuana for personal use. The proviso that “any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction for the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more
Thus, we hold that the legislature intended the misdemeanor possession of marijuana for personal use to be a separate offense from the felony offenses prohibited by
Because the holding of Vogel is confined to the facts of that case and does not apply in this context, we find that this court‘s earlier reliance on Vogel to remand the cases of Jerry Leonard Cowart v. State, 488 So.2d 497 (Ala.Cr.App.1985), and Teresa Jane Cowart v. State, 461 So.2d 21 (Ala.Cr.App.1984), for proper sentencing was in error. The Cowarts, husband and wife, were both separately convicted and separately sentenced for possession of fluorazepam, in violation of
The judgment of the circuit court is affirmed.
AFFIRMED.
TAYLOR, PATTERSON, McMILLAN, JJ., concur.
TYSON, J., dissents with opinion.
TYSON, Judge, dissenting.
As noted in the opinion of the majority, Kenneth E. McClendon filed a motion to dismiss, alleging a case of former jeopardy citing this court‘s opinion in Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), affirmed on another ground, writ quashed as to instant issue, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983).
Vogel held that the simultaneous possession of several types of drugs where the fact of possession occurs at the same time and in the same place, constitutes but one offense of possession.
I view the Vogel case as dispositive of the issues presented in this cause and, therefore, respectfully dissent. I am further of the view that the reliance by this court on Vogel in Cowart v. State, 488 So.2d 497 (Ala.Crim.App.1985), and Cowart v. State, 461 So.2d 21 (Ala.Crim.App.1984), which cases were remanded for proper sentencing, was correctly decided.
I, therefore, view the majority opinion as an attempt to overrule the above authorities and for this reason, also, must dissent.