State v. Gill

547 P.2d 166 (1976)

STATE of Oregon, Respondent, v. James Lee GILL, Appellant.

Court of Appeals of Oregon.

Argued and Submitted February 24, 1976.

Decided March 22, 1976.

Dennis H. Elliott, Portland, argued the cause for appellant. On the brief were Kevin P. O'Connell and O'Connell, Goyak & Haugh, P.C., Portland.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Defendant was indicted, tried to the court after jury waiver, and convicted on three separate counts of Criminal Activity in Drugs, involving unlawful possession respectively of heroin, cocaine and marihuana. ORS 167.207. He received sentences of ten years on each count, each to run consecutively to its predecessor. Execution of sentence on each count was then suspended for five years and defendant was placed on five years' probation on each. He appeals, asserting error in denial of a motion to suppress evidence, and also in the imposition of three separate sentences.

Pursuant to a warrant the police searched defendant's premises, found the three drugs above, seized them and arrested the defendant. Defendant contends that the warrant was issued without probable *167 cause and filed motions both to suppress and to controvert. The testimony presented did not controvert the allegations of the affidavit and on its face the affidavit clearly furnished probable cause for the issuance of the warrant. State v. Willis, 24 Or. App. ___, 545 P.2d 1392 (Feb. 17, 1976).

We turn to the second assignment relating to imposition of three sentences for simultaneous possession in the same place of three separate drugs. We agree that but one sentence could be imposed. The indictment charged in each count that possession of each of the prohibited drugs was part of one and the same transaction. The offense occurred at the same time in the same place and only the defendant was charged with Criminal Activity in Drugs. This case is governed by the holdings developed in and from State v. Welch, 264 Or. 388, 505 P.2d 910 (1973); State v. Florance, 15 Or. App. 118, 515 P.2d 195 (1973), rev'd on other grounds 270 Or. 169, 527 P.2d 1202 (1974); State v. Estlick, 24 Or. App. 117, 544 P.2d 596 (1976); State v. Homer, 22 Or. App. 328, 538 P.2d 945, Sup.Ct. review denied (1975); State v. Morales, 21 Or. App. 827, 537 P.2d 109, former opinion adhered to, 22 Or. App. 470, 539 P.2d 1112, Sup.Ct. review denied (1975); State v. Boyd, 15 Or. App. 650, 517 P.2d 321 (1973), Sup.Ct. review denied (1974); State v. Miller, 14 Or. App. 396, 513 P.2d 508 (1973); State v. Dechand, 13 Or. App. 530, 511 P.2d 430 (1973). Recently in State v. Homer, supra, a case where in the search of a car a defendant was found in possession of two separate prohibited drugs in the glove compartment, we concluded that although convicted of possession of each, he could be sentenced for only one. It follows then that in this case the judgment must be reversed and the case remanded to the trial court for the modification of its sentence to provide for only one penalty. State v. Welch, supra, 264 Or. at 395, 505 P.2d 910.

Affirmed in part, reversed in part, and remanded with instructions.