Opinion
December 10, 1973.
April 3, 1974.
Criminal law — Practice — Sentencing — Defendant entitled to be re-sentenced under the new Drug Act (The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, No. 64) where matter is on appeal and not final.
Where a conviction for violation of The Drug, Device and Cosmetic Act of 1961 is directly appealed, and the matter is not final, the defendant is entitled to be sentenced under The Controlled Substance, Drug, Device and Cosmetic Act of 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, CERCONE, and SPAETH, JJ. (SPAULDING, J., absent).
Appeal, No. 1961, Oct. T., 1973, from judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1971, Nos. 944, 946, 947, and 949, in case of Commonwealth of Pennsylvania v. Leroy Frisby. Case remanded for resentencing under new Drug Act.
Petition for post-conviction relief. Before WRIGHT, J.
Order entered dismissing petition and granting leave to file an appeal nunc pro tunc from judgment of sentence. Defendant appealed.
David E. Auerbach, Assistant Public Defender, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Argued December 10, 1973.
The appellant was charged with the sale of narcotic drugs to an undercover agent of the Pennsylvania State Police. He pled guilty to indictments charging violation of § 4(q) of The Drug, Device and Cosmetic Act of 1961, 35 P.S. 780-4(q), and was sentenced to 5 to 10 years under the Act.
This matter is before us on direct appeal and since it is not final, the appellant is entitled to be resentenced under the new Drug Act: "The Controlled Substance, Drug, Device and Cosmetic Act." See, Commonwealth v. Thomas, 450 Pa. 548, 301 A.2d 359 (1973); Commonwealth v. Evans, 222 Pa. Super. 590, 296 A.2d 844 (1972).
Act of April 14, 1972 (No. 64), 35 P. S. § 780-101 to 780-143; repealing the Act of September 26, 1961 (P.L. 1664).
The case is remanded for resentencing under the new Drug Act.