McCoy v. State

261 So. 2d 491, 1972 Miss. LEXIS 1299

Opinion

SMITH, Justice:

ON PETITION FOR RESENTENCING

Petitioner was convicted April 6, 1970, in the Circuit Court of Warren County on a charge of possession of marijuana. On April 16, 1971, the Uniform Controlled Substances Act became effective. Section 6831 through 6831-88 Mississippi Code 1942 Annotated (Supp.1971). Under that Act the possession of marijuana is also unlawful. There was a conflict as to the punishment to be imposed for the possession of marijuana as set forth in the Uniform Controlled Substances Act. In Johnson v. State, Miss., 260 So.2d 436, Decided March 27, 1972, this Court recognized the conflict and held that possession of marijuana is a misdemeanor.

Petitioner has requested this Court to resentence him under the authority of Johnson v. State, supra. Code section 6831-75(f), Mississippi Code 1942 Annotated (Supp.1971) states:

Any person who was convicted and/or who is still serving a sentence in the Mississippi State Penitentiary for a first offense under any act hereunder repealed may, upon the enactment of this act, petition the court of original jurisdiction for resentencing under the provisions of this act.

See also Jackson v. State, Miss., 261 So.2d 126, Decided April 10, 1972.

The petitioner should address his petition to the trial court from which sentence was imposed. Under the authority of Johnson v. State, supra, the penalty for posession of marijuana is imprisonment for not more than six months or a fine of $500, or both.

Petition for resentencing dismissed without prejudice.

All Justices concur, except Sugg, J., who dissents.