State v. Conover

502 P.2d 552, 28 Utah 2d 335, 1972 Utah LEXIS 865

• Court: Utah Supreme Court
• Decided: October 30, 1972
• Docket: 12911
• Status: Published

Opinions

ELLETT, Justice:

The defendant herein was charged by complaint filed February 1, 1972, and subsequently by an information with selling a stimulant drug (methamphetamine) on December 19, 1971. The trial court on motion of the defendant quashed the information and dismissed the case. The State has appealed that ruling pursuant to the provisions of Section 77-39-4, U.C.A.1953, which states that “An appeal may be taken by the state: (1) From a judgment of dismissal in favor of the defendant upon a motion to quash the information or indictment.”

Prior to January 1, 1972, it was unlawful for persons (other than those described in the statute) to sell any depressant or stimulant drug to any other person.¹ The penalty for violation of the statute was imprisonment for not more than one year or a fine of not more than one thousand dollars or both such imprisonment and fine, etc.²

The statutes above referred to were repealed effective January 1, 1972, by Laws of Utah 1971, Chapter 145, wherein new penalties were provided for unlawful conduct set out in the chapter. Section 18 of Chapter 145 provides, in part, as follows:

(l)(a) Prosecution for violation of any law or offense occurring prior to the effective date of this act shall not he affected by this act; provided, that sentences imposed after the effective date of this act may not exceed the maximum terms specified and the judge has discretion to impose any minimum sentence.

In this case the defendant was accused of violating the law as it existed on December 19, 1971. He contends, and the trial judge apparently believed, that he cannot now be prosecuted because the prosecution was not commenced prior to the effective date of the repeal of the law under which he was accused. In other words, the defendant would like this court to declare a moratorium for all violations of the old statute unless prosecution therefor was commenced before the effective date of the repealing law, even if the crime was committed one minute before midnight on December 31, 1971.

There is a general statute³ which provides :

No offense committed, and no penalty or forfeiture incurred, under any statute hereby repealed before the repeal takes effect shall be affected by the repeal, except that when a punishment, penalty or forfeiture is mitigated by the provisions herein contained such provisions shall be applied to a judgment pronounced after the repeal.

The repealing statute specifically provides that prosecutions for violations occurring prior to the effective date thereof “shall not be affected by this act; . . .” There is a provision in the act which states that sentences imposed after the effective date must not exceed the maximum terms specified in the new act.

This language is clear and unambiguous. The defendant can be prosecuted for his criminal acts, if any, committed prior to January 1, 1972, and the only effect of the new act is to serve as a limitation on the penalty to he inflicted for violating the old law.

The judgment of the court is reversed, and the case is remanded for further proceedings under the information.

CALLISTER, C. J., and CROCKETT, J., concur.

1 . Laws of Utah 1967, Chapter 140, § 6(b).

2 . Laws of Utah 1967, Chapter 140, § 4(a).

3 . Section 63-2-3, U.C.A.1953.