Opinion
March 20, 1974.
June 21, 1974.
Criminal Law — Practice — Sentencing — The New Drug Act.
The Controlled Substance, Drug, Device and Cosmetic Act (The New Drug Act) provides that "in any case not yet final if the offense is similar to one set out in this Act, the penalties under this Act apply if they are less than those under prior law." It was Held that defendant should have been sentenced under the New Drug Act which prescribes no minimum term of imprisonment.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 358, Oct. T., 1973, from the judgment of sentence of Court of Common Pleas, Trial Division, or Philadelphia, April T., 1972, No. 54, in case of Commonwealth of Pennsylvania v. Harry Brown. Case remanded for resentencing.
Indictments charging defendant with unlawful possession and sale of narcotic drugs. Before GUTOWICZ, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
Martin A. Ostrow, for appellant.
David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Submitted March 20, 1974.
Appellant contends that the lower court erred in sentencing him pursuant to The Drug, Device and Cosmetic Act of 1961.
On August 25th and 29th, 1972, the appellant was tried and convicted of felonious sale and possession of narcotic drugs before the Honorable Theodore S. GUTOWICZ and a jury in the Court of Common Pleas of Philadelphia County. On December 14, 1972, Judge GUTOWICZ sentenced appellant to serve a term of five to ten years at a State Correctional Institution.
The Drug, Device and Cosmetic Act of 1961 was repealed and in its place the Legislature enacted the Controlled Substance, Drug, Device and Cosmetic Act (The New Drug Act). The New Drug Act provides: "In any case not yet final if the offense is similar to one set out in this act, the penalties under this Act apply if they are less than those under prior law." April 14, 1972, P.L. 233, No. 64, Sec. 39 ( 35 P.S. Sec. 780-139). Appellant was sentenced under the Drug Act of 1961 which mandated that the sentencing judge impose a minimum sentence of five years. Under Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972), appellant should have been sentenced under The New Drug Act which prescribes no minimum term of imprisonment.
Accordingly, this case is remanded for resentencing under the New Drug Act.