holding that the defendant’s convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine did not violate the principles of double jeopardy because the legislature intended the punishments to protect against two distinct “perceived evils” — the use of cocaine in the possession offense and the “growing concern regarding the gravity of illegal drug activity in North Carolina” in the trafficking offense
How later courts described this case
- holding that the defendant’s convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine did not violate the principles of double jeopardy because the legislature intended the punishments to protect against two distinct “perceived evils” — the use of cocaine in the possession offense and the “growing concern regarding the gravity of illegal drug activity in North Carolina” in the trafficking offense
- examining legislative intent and holding that the offenses of felonious possession of cocaine and trafficking in cocaine by possession, based on the same contraband, may be punished separately
- no double jeopardy in separate punishments for felonious possession of cocaine and trafficking in cocaine, by possession
- "Unlike N.C.G.S. § 90-95(a)(3), which combats the perceived evil of individual possession of controlled substances, [the trafficking stat- ute], by its language, is intended to prevent the large-scale distribution of controlled substances to the public."
Written by the judges who cited it.
The opinion
Justice Frye
dissenting.
This case presents the issue of whether defendant’s convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine, based on the same contraband, violate the principles of double jeopardy. The majority concluded that “an examination of the subject, language and history of the statutes indicates that the legislature intended that these offenses be punished separately, even where the offenses are based on the same conduct. See Gardner, 315 N.C. at 461, 340 S.E.2d at 712.” Because I disagree with the majority’s conclusion regarding the legislative intent in creating the. separate offenses of felonious possession of cocaine and trafficking in cocaine by possession, I find it unnecessary to reach the constitutional question.
N.C.G.S. § 90-95(a)(3), the basis of defendant’s conviction of felonious possession, provides:
*436 (a) Except as authorized by this Article, it is unlawful for any person:
(3) To possess a controlled substance.
N.C.G.S. § 90-95(a)(3) (1993). The punishment for violating subsection (a)(3) is provided under subsection (d) which states that:
Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(3) with respect to:
(1) A controlled substance classified in Schedule I shall be punished as a Class I felon;
(2) A controlled substance classified in Schedule II, III, or IV shall be guilty of a misdemeanor and shall be sentenced to a term of imprisonment of not more than two years or fined not more than two thousand dollars ($2,000), or both in the discretion of the court.... If the controlled substance is ... cocaine ..., the violation shall be punishable as a Class I felony.
N.C.G.S. § 90-95(d)(l)(2) (1993) (emphasis added).
N.C.G.S. § 90-95(h)(3)(a), the basis of defendant’s conviction of trafficking in cocaine by possession, provides that
[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as “trafficking in cocaine” and if the quantity of such substance or mixture involved:
a. Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class G felon and shall be sentenced to a term of at least seven years in the State’s prison and shall be fined not less than fifty thousand dollars ($50,000)[.]
N.C.G.S. § 90-95(h)(3) (1993) (emphasis added).
It seems clear to me that by the language in G.S. § 90-95(d), “except as provided in subsections (h) and (i) of this section,” the legislature provided a punishment for possession of cocaine in amounts less than 28 grams. When the amount of cocaine exceeds 28 grams, however, the legislature intended that G.S. § 90-95(h)(3) apply and that a defendant be guilty of the felony known as “trafficking in cocaine.” I find the language “except as provided in subsections (h) *437 and (i) of this section, to be strong evidence that the legislature did not intend that these offenses be punished separately but instead that the punishment set forth in G.S. § 90-95(d) would apply only when the punishment set out in G.S. § 90-95(h)(3) did not.
I agree fully with the majority opinion that the “policy determination underlying [N.C.G.S. § 90-95(a)(3)] is that the possession by any person of any amount of controlled substances is against the public’s interest, presumably because it enhances the potential for use of the substance, either by the possessor or by a person to whom the possessor distributes it” and that N.C.G.S. § 90-95(h)(3) was “responsive to a growing concern regarding the gravity of the illegal drug activity in North Carolina and the need for effective laws to deter the corrupting influence of drug dealers and traffickers.” (Citations omitted.) However, I do not agree that the statute as written provides for or that the legislature intended that a defendant be punished separately for the offenses of felonious possession of cocaine and trafficking in cocaine by possession of a specific amount of cocaine in one place at one time.
Chief Justice Exum joins in this dissenting opinion.