Opinion
March 28, 1974.
June 21, 1974.
Criminal Law — Practice — Correction of sentence — The Controlled Substance, Drug, Device and Cosmetic Act of 1972 — Case on direct appeal to Supreme Court on effective date of Act — Finality of judgment — Similarity of offenses under The Drug, Device and Cosmetic Act of 1961 and The Controlled Substance, Drug, Device and Cosmetic Act of 1972.
1. The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, § 39(a) provides "Prosecution for any violation of law occurring prior to the effective date of this act is not affected or abated by this act. 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."
2. The effective date of The Controlled Substance, Drug, Device and Cosmetic Act of 1972 was June 14, 1972, and where defendant filed a timely petition for allocatur in the Supreme Court on June 16, 1972, from an affirmance by the Superior Court of conviction of possession of heroin in violation of The Drug, Device and Cosmetic Act of 1961, it was Held that his case was not final before the effective date of the new act and the defendant was entitled to be resentenced under the new act.
3. A judgment is final when the availability of appeal is exhausted and the time for petition for certiorari has elapsed.
4. It was Held that defendant's possession of heroin under the 1961 act was similar to possession under the 1972 act and the penalty under the new act should apply.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 37, Oct. T., 1973, from order of Court of Common Pleas, Criminal Division, of Philadelphia, Dec. T., 1969, No. 1462, in case of Commonwealth of Pennsylvania v. Robert Allen Perry. Order reversed and case remanded.
Proceedings upon petition for correction of sentence.
Order entered dismissing petition, order by WRIGHT, J. Defendant appealed.
Barbara Bailey and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Submitted March 28, 1974.
The only issue on this appeal is whether appellant should be resentenced under The Controlled Substance, Drug, Device and Cosmetic Act. We find that he should be resentenced and reverse the lower court's order which denied his petition for correction of sentence.
Act of April 14, 1972, P.L. 233, No. 64, § 1 et seq., 35 P. S. § 780-101 et seq. (Supp. 1973-74).
Appellant was charged, tried, and found guilty of possession of narcotic drugs, namely heroin, in violation of The Drug, Device and Cosmetic Act of September 26, 1961, P.L. 1664, § 1 et seq., 35 P. S. § 780-1 et seq. His sentence under that act was 9 months to 5 years imprisonment. On appeal, his conviction was affirmed per curiam by our Court on May 18, 1972. On June 14, 1972, The Controlled Substance, Drug, Device and Cosmetic Act became effective. Two days later, appellant filed a timely petition for allocatur in the Supreme Court. That petition was denied on September 29, 1972. On October 11, 1972, appellant's petition to correct his sentence was denied by the court below. This appeal followed.
Commonwealth v. Perry, 221 Pa. Super. 789, 291 A.2d 782, allocatur refused, 221 Pa. Super. xlvi (1972).
Section 39(a) of The Controlled Substance, Drug, Device and Cosmetic Act provides: "Prosecution for any violation of law occurring prior to the effective date of this act is not affected or abated by this act. 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."
Appellant claims that his case was not yet final before the effective date of The Controlled Substance, Drug, Device and Cosmetic Act. We agree. In Commonwealth v. Simpson, 222 Pa. Super. 296, 303, 294 A.2d 805, 808 (1972), we said: "A judgment is final when the availability of appeal is exhausted and the time for petition for certiorari has elapsed." The present case was still on direct appeal when the new act became effective.
Turning next to the requirement that the offense be similar to one under the new act, we note that The Controlled Substance, Drug, Device and Cosmetic Act in § 780-113(a)(16) also prohibits the possession of heroin. Commonwealth v. Simpson, supra. Although the new act in § 780-113(a)(30) creates an additional crime, called possession with intent to manufacture or deliver, it has not been argued that appellant committed that crime. We are satisfied that appellant's offense is similar to possession under the new act and that its penalty should apply.
The penalty for mere possession of heroin under The Controlled Substance, Drug, Device and Cosmetic Act is imprisonment not exceeding 1 year or a fine not exceeding $5,000 or both. Since appellant's sentence of 9 months to 5 years exceeds the penalty under the new act, he is entitled to be resentenced. Commonwealth v. Santiago, 223 Pa. Super. 493, 305 A.2d 378 (1973); Commonwealth v. Simpson, supra.
Act of April 14, 1972, P.L. 233, No. 64, § 13(b), as amended, 35 P. S. § 780-113(b).
Appellant's procedure in attacking his sentence has not been challenged.
Order reversed and case remanded for resentencing consistent with this opinion.