LUMAN v. STATE

LUMAN v. STATE
1981 OK CR 165
638 P.2d 472
Case Number: F-78-624, F-78-625
Decided: 12/18/1981
Oklahoma Court of Criminal Appeals

Appeal from the District Court, LeFlore County, Pat Pate, J.

James W. Fransein, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Michael Avant-Pybas, Asst. Atty. Gen., Oklahoma City, for appellee.

ORDER CORRECTING OPINION

¶1 It has come to the attention of this Court that a correction should be made in the opinion issued for the above styled and numbered cause. The concluding paragraph in Luman v. State, 629 P.2d 1275 (Okl.Cr. 1981), appearing on page 1277 and beginning on line 23 reads:

The final proposition of error is that the punishment was excessive. We find this argument to have merit only with respect to the fines imposed. Under the Uniform Controlled Dangerous Substances Act, 63 O.S.Supp. 1980 § 2-101 [63-2-101], et seq., the applicable penalty section, 2-401 B.2, authorizes punishment up to ten (10) years' imprisonment and a maximum fine of five thousand dollars ($5,000) for the cultivation (manufacture) of marijuana. Therefore, in Case No. CRF-77-167 for Unlawful Cultivation of Marijuana, ten (10) years' imprisonment each for James and Kenneth Luman was proper, but both the Ten Thousand Dollar ($10,000) fine for James and the Fifteen Thousand Dollar ($15,000) fine for Kenneth exceed the statutory maximum of five thousand dollars ($5,000). Therefore, the fine portion of the sentences should be reduced to Five Thousand Dollars ($5,000) each. The judgments and sentences are therefore AFFIRMED AS MODIFIED.

¶2 NOW THEREFORE, this Court finds that the last paragraph should be and is hereby CORRECTED to read as follows:

The final proposition of error is that the punishment imposed is excessive. As a result of the cultivation convictions, both appellants were sentenced to ten (10) years' imprisonment; James Luman was fined Ten Thousand Dollars ($10,000) and Kenneth Luman was fined Fifteen Thousand Dollars ($15,000). For the possession with intent to distribute convictions, Kenneth Luman was sentenced to ten [638 P.2d 473] (10) years' imprisonment to run consecutively with his other sentence; James Luman to five (5) years, to run concurrently with the other sentence.

We find this proposition to be without merit as the sentences and fines imposed are within the statutory limits provided in 63 O.S.Supp. 1980 § 2-509 [63-2-509], Laws 1976, c. 259, § 16; and 63 O.S.Supp. 1980 § 2-401 [63-2-401], Laws 1975, c. 22, § 1 [22-1].

The judgments and sentences are AFFIRMED.

IT IS SO ORDERED.

¶3 WITNESS OUR HANDS and the Seal of this Court this 18th day of December, 1981.

TOM BRETT, P.J.

HEZ J. BUSSEY, J.

TOM R. CORNISH, J.