State v. Kelly

Annotate this Case

189 S.E.2d 163 (1972)

281 N.C. 618

STATE of North Carolina v. Hugh McDonald KELLY.

No. 121.

Supreme Court of North Carolina.

June 16, 1972.

*164 Atty. Gen. Robert Morgan and Associate Atty. Henry E. Poole, Raliegh, for the State.

Harold P. Laing, Wilmington, for defendant.


The Attorney General's petition for certiorari is directed only to the modification of the trial court's judgment as to punishment. Defendant does not bring forward and argue in his brief any other assignment of error as required by the Rules of Practice in the Supreme Court, Supplementary Rule 7. Thus, the sole question presented by this appeal is whether the North Carolina Court of Appeals erred by modifying the judgment so as to reduce the grade of offense to a misdemeanor and so as to reduce the maximum period of defendant's sentence to two years' imprisonment. This question is squarely controlled by the holdings in State v. Harvey, 281 N.C. 1, 187 S.E.2d 706, and State v. McIntyre, N.C., 188 S.E.2d 304.

Defendant argues that his case does not come within the holdings of Harvey and McIntyre because the Controlled Substances Act unqualifiedly reduced the offense of which he stands convicted to a misdemeanor. The Act, on the other hand, created a presumption of the felony of possession of marijuana for purpose of sale when the accused as in Harvey and McIntyre, possesses more than five grams of marijuana. This distinction is invalid because it relates to degree of crime and punishment, rather than to the question of whether the Act is prospective. The expressed intent of the General Assembly that the provision of the Controlled Substances Act be prospective relates to the entire Act (G.S. ยง 90-113.7). There is no indication in the Act that any particular provision shall be otherwise treated.

The decisions in State v. Harvey, supra, and State v. McIntyre, supra, require that the modification of the trial court's judgment be reversed. This cause is remanded to the North Carolina Court of Appeals with direction that the judgment of the Superior Court be reinstated and affirmed.