Spencer v. State

Apr 30, 1987
No. F-86-456
Reporters:
, ,
Before:
Bussey

OPINION

BUSSEY, Judge:

The appellant, Charles A. Spencer, was tried and convicted in the District Court of Kiowa County of the crime of Unlawful Possession of Marijuana ‍​​​‌​​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​‌‌​​​​​​‌‌‌‌​​‌‌​​​‌‌‌‌‌​​‌​​​​​‌​​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌​‌​​‌‌​​​‌​‌​​​​​‍with Intent to Distribute, After Former Conviction of a Felony in Case No. CRF-85-30 and was sentenced to ten (10) years imprisonment, and he appeals.

In his single assignment of error appellant contends that the trial court committed fundamental error in its instruction given during the second stage of trial ‍​​​‌​​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​‌‌​​​​​​‌‌‌‌​​‌‌​​​‌‌‌‌‌​​‌​​​​​‌​​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌​‌​​‌‌​​​‌​‌​​​​​‍in that it instructed upon allowable punishment under the general habitual offender act, 21 O.S.1981, § 51, rather than under the specific statute applicable to drug related offenses, 63 O.S.1981, § 2-401. We agree.

Since the predicate felony used to enhance appellant’s punishment was for Unlawful Delivery of Marjuana, the jury should have been instructed ‍​​​‌​​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​‌‌​​​​​​‌‌‌‌​​‌‌​​​‌‌‌‌‌​​‌​​​​​‌​​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌​‌​​‌‌​​​‌​‌​​​​​‍that they could sentence appellant to a term of imprisonment from four (4) years to twenty (20) years and a fine of no more than $10,000. See 63 O.S.1981, § 2-401(B)(2), (C); see also Faubion v. State, 569 P.2d 1022 (Okl.Cr.1977). However, the trial court incorrectly instructed the jury, under 21 O.S. 1981, § 51, that the ‍​​​‌​​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​‌‌​​​​​​‌‌‌‌​​‌‌​​​‌‌‌‌‌​​‌​​​​​‌​​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌​‌​​‌‌​​​‌​‌​​​​​‍minimum sentence it could impose was ten (10) years with no maximum sentence stated. The jury sentenced appellant to the minimum sentence of ten (10) years, but since the minimum sentence under the proper statute was four (4) years, we are of the opinion that appellant’s sentence should be ‍​​​‌​​‌‌‌​​​​‌‌​‌‌​‌‌‌​‌‌​‌‌​​​​​​‌‌‌‌​​‌‌​​​‌‌‌‌‌​​‌​​​​​‌​​‌‌‌‌​​‌​‌​​‌​‌‌​‌‌​‌​​‌‌​​​‌​‌​​​​​‍modified to four (4) years imprisonment.

Accordingly, the judgment is AFFIRMED, but the sentence is MODIFIED to four (4) years imprisonment.

BRETT, P.J., and PARKS, J., concur.