598 So. 2d 1000 | Ala. Crim. App. | 1991
The appellant was indicted for possession of marijuana in the first degree, in violation of §
Evidence at trial tended to show that on three occasions over a period of several months an undercover Birmingham police officer had purchased marijuana from the appellant at a local residence. On each occasion, he observed the appellant sitting in the living room on a sofa near the front door, where she was able to observe who was outside before admitting anyone. The officer obtained and executed a search warrant for the residence, finding the appellant in her customary place on the sofa. The search produced 2 bags of cocaine (State's Exhibit 1) and 15 bags of marijuana (State's Exhibit 2) in or on the sofa; 6 1/2 bags of marijuana (State's Exhibit 3) in plain view near the door; and 2 prescription bottles of pills (State's Exhibits 4 and 5) under the sofa. A forensic expert found that State's Exhibit 1 contained a total of 29.33 grams of cocaine, Exhibits 2 and 3 contained a total of 26.483 grams of marijuana, and Exhibits 4 and 5 contained phentermine and diazepam, respectively.
This argument is without merit. Evidence of lysergic acid diethylamide (LSD) tablets and cocaine powder found along with marijuana has been held relevant on the issue of whether the accused possessed the marijuana with an intent other than for his personal use only. Brantley v. State,
This argument cannot be considered on appeal. A defense of double jeopardy should be raised by pretrial motion before or at arraignment. Rule 16.2(b) and (d), and Rule 16.3, A.R.Cr.P. The first evidence in the record concerning the issue of whether the appellant's possession of marijuana and of other controlled substances constitute the same offense appears in a hearing on a motion to consolidate that did not take place until after the appellant had waived arraignment and had entered a not guilty plea. The appellant failed to timely raise the double jeopardy issue, thereby waiving appellate consideration of that issue. See Cox v. State,
This argument is without merit. The purpose of the Fourteenth Amendment is to ensure that the same rule is applied to all persons in the same circumstances. Section
Therefore, this cause is remanded for proper sentencing. The circuit court is directed to impose the mandatory $50,000 fine in addition to the term of imprisonment already imposed. Return should be filed with this Court within a period not to exceed 84 days.
REMANDED WITH INSTRUCTIONS.
All the Judges concur.