Opinion
(SC 18261)
Argued February 11, 2010
Officially released March 23, 2010
Substitute information charging the defendant with the crimes of attempt to possess one kilogram or more of marijuana with intent to sell by a person who is not drug-dependent, possession of four ounces or more of marijuana and conspiracy to possess one kilogram or more of marijuana with intent to sell, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Owens, J.; verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, DiPentima and Rogers, Js., with Schaller, J., dissenting, which reversed the trial court's judgment and remanded the case with direction to render judgment of not guilty; thereafter, the state, on the granting of certification, appealed to this court, which reversed the judgment of the Appellate Court and remanded the case to that court for further proceedings; on remand, the Appellate Court, Bishop, Gruendel and Robinson, Js., reversed in part the judgment of the trial court and remanded the case to that court with direction to merge the conviction of attempted possession of one kilogram or more of marijuana with intent to sell by a person who is not drug-dependent with the conviction of possession of four ounces or more of marijuana, and to vacate the sentence on the conviction of possession of four ounces or more of marijuana, from which the state, on the granting of certification, appealed. Appeal dismissed.
C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Jonathan C. Benedict, former state's attorney, for the appellant (state).
Arthur L. Ledford, special public defender, for the appellee (defendant).
Opinion
The state appeals, upon our grant of its petition for certification, from the judgment of the Appellate Court reversing in part the judgment of conviction and remanding the case to the trial court with direction to merge the conviction of attempted possession of one kilogram or more of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (b) and 53a-49, with the conviction of possession of four ounces or more of marijuana in violation of General Statutes § 21a-279 (b), and vacating the sentence for possession of four ounces or more of marijuana. State v. Martin, 110 Conn. App. 171, 180-81, 954 A.2d 256 (2008). The Appellate Court determined that the two convictions violated the proscription against double jeopardy contained in the fifth amendment to the United States constitution and that they, therefore, must be merged, because, but for the actions of the police, the defendant, Andre D. Martin, would not have been charged with both offenses. Id., 177-79.
We granted the state's petition for certification to appeal limited to the following issue: "Did the Appellate Court correctly conclude that a conviction for possession of four ounces or more of marijuana in violation of General Statutes § 21a-279 (b) should be merged with the conviction of attempt to possess one kilogram or more of marijuana with the intent to sell in violation of General Statutes §§ 21a-278 (b) and 53a-49?" State v. Martin, 289 Conn. 944, 959 A.2d 1010 (2008).
The defendant was also convicted of conspiracy to possess a kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 21a-277 (b), 21a-278 (b) and 53a-48. This conviction is not at issue in this appeal.
In its certified appeal to this court, the state claims that the Appellate Court applied an improper legal standard in assessing the defendant's double jeopardy claims. After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.
The appeal is dismissed.