Opinion
No. F-74-821.
April 24, 1975.
An appeal from the District Court, Rogers County; William J. Whistler, Judge.
Ricky McCaskey was convicted for the crime of Possession of Marijuana with Intent to Distribute; his punishment was fixed at two (2) years' imprisonment, and he appeals. Reversed and remanded with instructions to dismiss. Mandate to issue forthwith.
Summerlin, Williams Zacharias, by C. Michael Zacharias, Claremore, Court Appointed, for appellant.
Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Harold T. Garvin, Legal Intern, for appellee.
OPINION
Ricky McCaskey, hereinafter referred to as defendant, was jointly charged, tried and convicted, with Diane McCaskey, in the District Court, Rogers County, Oklahoma, Case No. CRF-73-173, after a waiver of his right to a jury trial, for the offense of Possession of Marijuana with Intent to Distribute, in violation of 63 O.S. 1971 § 2-401[ 63-2-401] (B)(2). His punishment was set at two (2) years imprisonment and from said judgment and sentence a timely appeal has been perfected to this Court.
The controlling issue presented in this case is identical with that presented in Diane McCaskey v. State, Okla. Cr. 534 P.2d 1309, delivered by this Court this date, wherein we held that the search conducted under authority of a search warrant based upon the identical Affidavit as the one here involved, which was proven to be false by the testimony adduced at the preliminary examination, constituted a violation of the defendant's rights guaranteed by the Fourth Amendment to the Constitution of the United States.
For the reasons stated in Diane McCaskey v. State, supra, this case is reversed and remanded with instructions to dismiss.
It appearing to the Court, from the record before us, that Ricky McCaskey is presently incarcerated in the penitentiary, the Clerk of this Court is directed to issue the Mandate forthwith.