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Maximum Marijuana Penalities

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“What is the maximum sentence possible for selling marijuana?”

Although many marijuana dealing cases end in probation, there are many people serving jail time and even state prison sentences for selling marijuana. The maximum possible sentence for most marijuana dealing crimes is five years in jail. (35 P.S. 780-113(f)(2)).

However, there is an exception made for cases involving more than One Thousand Pounds of marijuana. In these most serious cases, the maximum penalty is doubled to ten years in jail. (35 P.S. 780-113(f)(1.1)).

As a side note, any time a gun is used in conjunction with a drug dealing situation, there is a five to ten year mandatory sentence. Because the statutory maximum for 99% of marijuana cases is only five years, these cases can end with the very unusual sentence of five years flat. (This is unusual because the minimum and the maximum of the sentence are the same.)

4 Comments on Maximum Marijuana Penalities

  1. Brian J. Zeiger, Esquire // at 12:50 am // Reply

    I am not sure if I agree with the part of the answer that says there is a possibility to have a five year flat sentence. I have heard of this before and in the question we received, the person actually did get a flat five. I would like to know if there is any case law on this point. I know that in Pennsylvania, your maximum can never be more then twice your minimum, so how can you ever get a flat sentence (See Commonwealth v. Cain, 432 Pa. Super. 47; See also Pa. Cons. Stat. Ann. ยง 9756(b); but see Commonwealth v. Bell, 537 Pa. 558 US writ of cert denied (saying a 5 year flat might be possible); Commonwealth v. Stemple, 2008 PA Super 1 (discussing flat contridiction sentencing involving dui by vehicle, but distinguishing Bell infra). I think that even if the statute for mandatory sentences allows for the flat five, unless there is case law, I would argue that the statute would be unconstitutional and while the Supreme Court of Pennsylvania in Bell seems to indicate a flat five would be ok, I am not moved by these cases.

  2. Statutes concerning criminal law and sentencing law are “in pari materia” or on the same subject. As a matter of statutory construction, they must be read together and interpreted in light of each other. If possible, the statutes must be construed together, so as to avoid conflict.

    In the case of a five year mandatory minimum marijuana case that is also a five year maximum, the result is a five year flat sentence. Clearly, this conflicts with the sentencing rule that a maximum must be at least twice as long as the minimum.

    The traditional rule of statutory construction is that where statutes have an irreconcilable conflict, the more specific statute takes precedence over a statute of general application. Therefore, the max being more than the min general statute must give way to the specific statutes on point as to the mando min as well as the statutory max on marijuana pwid.

    Our Supreme Court very cogently and clearly laid this out in Bell, a case you cite.

    You say you aren’t moved by this case – what does that mean, then? Are you suggesting that someone can get a five to ten year sentence in excess of the statutory maximum? That was the argument of the AG in Bell, and the Court said No. Are you saying that the person must get two and a half to five? Under the same reasoning as Bell (that the specific and more recent mando min statute takes precedence over the general sentencing statute), the Court would also say No.

    A third option is that the statutes are unconstitutionally vague and therefore marijuana distribution should be legalized. Unfortunately, we know that’s not going to happen through the courts…

    Your thoughts, Brian? Anyone else care to weigh in?

  3. Brian J. Zeiger, Esquire // at 1:45 am // Reply

    I think the Bell court is trying to say that the sentence is the legal sentence, but the legislature can overrule the parole board not allow them to parole someone. So, for example, a two and a half to five becomes a five flat, ie, a two and a half to five with no parole. Which, by all legal standards is bullshit.

  4. This would be a lot easier if they just decriminalized marijuana.

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