where evidence showed the delivery of 476.92 grams of cocaine, the evidence did not support convictions for delivery of lesser amounts and the trial court did not err in failing to instruct on these offenses
How later courts described this case
- where evidence showed the delivery of 476.92 grams of cocaine, the evidence did not support convictions for delivery of lesser amounts and the trial court did not err in failing to instruct on these offenses
Written by the judges who cited it.
The opinion
Michael J. Kelly, P.J.
(dissenting in part). I concur in the majority’s affirmance of both defendants’ convictions but disagree with its holding that defendant Thomas’ sentence does not constitute cruel and unusual punishment.
Since defendant Thomas’ conviction, the Legislature has amended the statute to provide for a lesser ten-year minimum sentence and to give the *544 sentencing court discretion to depart from the minimum sentence requirement. MCL 333.7401(2)(a)(ii), 333.7401(4); MSA 14.15(7401)(2)(a)(ii), 14.15(7401)(4). This legislative revision indicates that the punishment defendant Thomas received was not proportionate to his crime, and so constitutes cruel and unusual punishment. People v Schultz, 172 Mich App 674, 687 ; 432 NW2d 742 (1988). I would remand defendant Thomas’ case for resentencing under the new statute.