State v. Fair

Utah Supreme Court

State v. Fair

456 P.2d 168, 23 Utah 2d 34, 1969 Utah LEXIS 486

CourtUtah Supreme Court

DecidedJuly 1, 1969

Docket11121, 11195

StatusPublished

Cited by6 cases

This text of 456 P.2d 168 (State v. Fair) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fair, 456 P.2d 168, 23 Utah 2d 34, 1969 Utah LEXIS 486 (Utah 1969).

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Opinions

HENRIOD, Justice:

Appeal from a jury’s verdict and judgment entered thereon, for uttering a forged, prescription under the Uniform Narcotic [35]*35Drug Act,¹ and from a judgment denying a petition for writ of habeas corpus filed pending the appeal, which had to do with the same problem, and which we ordered consolidated with the regular appeal. The judgment on petition for habeas corpus is affirmed (Case No. 11195, this court), and the case on the regular appeal (Case No. 11121, this court), is remanded for resen-tencing in accordance with the provisions of 58-17-14.13 (L.Utah 1965, Ch. 117, Sec. 2, —see Supp.1967, Replacement Vol. 6, U.C.A.1953),² having to do with misdemeanor provisions thereof.

At the time this case was filed and briefed in this court, the case of State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (April, 1969) had not been decided, but it became a matter of oral argument before this court on June 11, 1969. That case and this one have to do with the shifting legislative sands appurtenant to the land of narcotics and drug control. The Shondel case said an amendment by the legislature making an act subject to two legislative fiats one of which would penalize an accused as a mis-demeanant, the other as a felon, gave the accused the benefit of being accountable only for the lesser of the two penalties. That case seems to be controlling here. The distinctions in the two statutes here seem to be less convincing than those suggested in the Shondel case, — and in this respect attention is directed to the legislation in that case and that here, all of which compels us consistently to send this case back for resentencing in accordance with appellant’s plea that “the sentence should be reduced to a maximum of six months.”

Only other point on appeal was that of twice in jeopardy. We have examined the record and conclude that this point on appeal is without merit.

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

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HENRIOD, Justice:

Appeal from a jury’s verdict and judgment entered thereon, for uttering a forged, prescription under the Uniform Narcotic [35]*35Drug Act,¹ and from a judgment denying a petition for writ of habeas corpus filed pending the appeal, which had to do with the same problem, and which we ordered consolidated with the regular appeal. The judgment on petition for habeas corpus is affirmed (Case No. 11195, this court), and the case on the regular appeal (Case No. 11121, this court), is remanded for resen-tencing in accordance with the provisions of 58-17-14.13 (L.Utah 1965, Ch. 117, Sec. 2, —see Supp.1967, Replacement Vol. 6, U.C.A.1953),² having to do with misdemeanor provisions thereof.

At the time this case was filed and briefed in this court, the case of State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (April, 1969) had not been decided, but it became a matter of oral argument before this court on June 11, 1969. That case and this one have to do with the shifting legislative sands appurtenant to the land of narcotics and drug control. The Shondel case said an amendment by the legislature making an act subject to two legislative fiats one of which would penalize an accused as a mis-demeanant, the other as a felon, gave the accused the benefit of being accountable only for the lesser of the two penalties. That case seems to be controlling here. The distinctions in the two statutes here seem to be less convincing than those suggested in the Shondel case, — and in this respect attention is directed to the legislation in that case and that here, all of which compels us consistently to send this case back for resentencing in accordance with appellant’s plea that “the sentence should be reduced to a maximum of six months.”

Only other point on appeal was that of twice in jeopardy. We have examined the record and conclude that this point on appeal is without merit.

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

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Bluebook (online)

456 P.2d 168, 23 Utah 2d 34, 1969 Utah LEXIS 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fair-utah-1969.

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