majority">Robert H. Dudley, Justice.

Appellee Scott Landis pleaded guilty to the offense of delivery of less than ten pounds of marijuana, a class C felony. The trial court sentenced appellee to five years probation, placed him under house arrest for six months, and ordered him to pay court costs and restitution. The State objected to placing appellee on probation. The trial court overruled the objection and entered the probated sentence. The State appeals. We reverse and remand for resentencing.

The appellee committed the felony in November, 1991. At that time the applicable statutes in force provided that a court could not place a defendant on probation for drug related offenses under the Uniform Controlled Substance Act, except as provided in that Act. Ark. Code Ann. §§ 5-4-104(e)(1)(F) & 5-4-301(a)(l)(F) (Supp. 1991), repealed by Act 192 of 1993. The Act prescribes the punishment for delivery of less than ten pounds of marijuana as imprisonment for no less than four years nor more than ten years “and/or” a fine of no more than twenty-five thousand dollars. Probation is only authorized under the Act for possession of a controlled substance. Ark. Code Ann. § 5-64-407 (Repl. 1993). Appellee pleaded guilty to delivery of a controlled substance. In summary, at the time the offense was committed, the applicable statutes prohibited probation for delivery of a controlled substance, and, consequently, the trial court erred in placing appellee on probation.

We have decided the issue presented in this appeal on several occasions. See, e.g., State v. Williams, No. CR 93-870 (Ark. Jan. 10, 1994); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). Appellee contends these cases should be distinguished because they involve cocaine, not marijuana, and because the punishment for the offense of delivery of less than ten pounds of marijuana allows the imposition of a fine only, unlike an offense involving cocaine. The cases cannot be so distinguished. In Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992), we affirmed the refusal of a trial court to impose probation or suspend imposition of sentence for the same offense, delivery of marijuana. In so doing we wrote: “Act 608 [sections 5-4-301(a)(1)(F) and 5-4-104(e)(1)(F)] makes it obvious that delivery of marijuana is simply not a crime where either probation or suspension is available to the circuit court for consideration as an appropriate sentence.” Id. at 380, 843 S.W.2d at 854.

The State cited Whitener at the time it objected to the trial court placing appellee on probation. While it may seem incongruous that, at the time the crime was committed, a trial court could punish an offender by simply fixing a fine, but could not place a defendant on probation, such was the mandate of the statutes in effect. The statutes have now been amended, and this incongruity has been removed.

Reversed and remanded for resentencing.

Brown, J., dissents.

Citation profile

Relationships

How this case has been treated — in progress