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Statute does not allow for deferral of dealing marijuana charge

July 17, 2014

The Indiana Court of Appeals rejected a man’s argument that I.C. 35-48-4-12 would run afoul of double jeopardy or collateral estoppel if the court defers his marijuana possession charge but not his charge of dealing marijuana.

Carlin Graffenread faces charges of Class A misdemeanors possession of marijuana and dealing in marijuana. He petitioned the trial court to defer both charges under I.C. 35-48-4-12, which allows a defendant charged with possession of marijuana as a first offense to have the charge deferred and dismissed if the defendant abides by the conditions imposed by the trial court.

The trial court deferred Graffenread’s possession charge, but denied his petition regarding the dealing charge. The Indiana Court of Appeals affirmed on interlocutory appeal in Carlin Graffenread v. State of Indiana, 49A05-1310-CR-499.

Graffenread claims the state can’t pursue the dealing charge since the possession charge has been deferred, but dealing in marijuana contains an essential element not found in simple possessions – the intent to deliver, Judge Michael Barnes wrote.

“We conclude that the language of Indiana Code Section 35-48-4-12 is clear and unambiguous on its face and does not run afoul of double jeopardy or collateral estoppel. We therefore must not expand or restrict what the statute clearly and plainly expresses. The statute’s conditional deferment and dismissal clearly applies only to first time offenders who are charged with possession of marijuana, hashish, salvia, or a synthetic drug. There is no language within the statute to indicate that the legislature intended to include within the statute greater offenses that might include possession as an element. The legislature chose to allow leniency for some drug possession charges, but not drug dealing charges,” he wrote.
 

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