Opinion
No. 10337
April 6, 1979
Appeal from First Judicial District Court, Carson City; Howard D. McKibben, Judge.
Norman Y. Herring, Nevada State Public Defender, and J. Gregory Damm, Chief Deputy Public Defender, Carson City, for Appellant.
David B. Small, District Attorney, and William Maddox, Deputy District Attorney, Carson City, for Respondent.
OPINION
The offense for which Raymond Eugene Carter stands convicted, selling a controlled substance in violation of NRS 453.321, was committed in March 1977, his trial was completed September 1, 1977, and he was sentenced on October 7, 1977, to life in prison with the possibility of parole consideration after serving a minimum of seven years.
After commission of the crime but before sentencing, the penalty provisions of NRS 453.321 were amended so as to subject Carter to the possibility of life imprisonment or a definite term of not less than one year nor more than twenty years, together with a discretionary fine not to exceed $5000. The district judge was not advised by counsel of the amendment granting authority to impose a less severe sentence than life imprisonment.
The Nevada State Public Defender was appointed to represent Carter on appeal. Privately retained counsel represented him through trial and sentencing.
Although it is the general rule that the proper penalty is that in effect at the time of the commission of the offense, Tellis v. State, 84 Nev. 587, 445 P.2d 938 (1968), a statute relating solely to drug convictions, NRS 453.341 mandates that penalties under NRS 453.321 to NRS 453.551 inclusive apply if less than under prior law. Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979). Accordingly, the sentence imposed is set aside and this case is remanded to the district court to resentence in accordance with applicable law. Other assigned errors are without merit.