Selling Marijuana Still a Felony in West Virginia – State v. Nutter

As marijuana becomes decriminalized and even legalized in some jurisdictions across the country, users are coming out of the shadows and at least certain segments of society appear to be warming up to the idea of recreational use of the drug. The West Virginia judiciary and legislature are not part of those segments. As the state Supreme Court recently explained, selling marijuana remains a felony in the state and will be punished as such until lawmakers make a change.

tray-of-marijuana-1437843-s.jpgMr. Nutter was convicted on two felony charges of delivering marijuana – one to an undercover police officer and the other to a private individual – following a jury trial in August 2013. He was originally sentenced to five years in prison, but later had the sentence suspended and was placed on probation. He was ordered to pay nearly $3,000 in court costs, but wasn’t subjected to any other money penalties.

Nutter later appealed the decision, arguing that he should have been charged with misdemeanors instead of felonies. Nutter further argued that the state’s system of designating each crime as a misdemeanor or felony violates the West Virginia constitution, which requires that “penalties shall be proportional to the character and degree of the offense.” Nutter said that the nonviolent crimes with which he was charged shouldn’t be characterized the same way as more egregious felonies. He said that was particularly true given that marijuana use is becoming more widely accepted across the country.

The state supreme court disagreed, explaining that it was up to the state legislature to determine the proper characterization and punishment for different crimes. “The power of the Legislature to prescribe the punishment for the offense is very broad, and must be left to the judgment of that body as to what punishment will be adequate for the purpose of deterring others from the commission of crime, and for the reformation of the offender,” the Court said, quoting its 1950 decision in State v. Painter. As a result, the Court said it wouldn’t interfere with lawmakers’ policy decision about how the marijuana charges should be classified.

Similarly, the Court rejected Nutter’s challenge to the state’s classification of marijuana as a Schedule I drug – the same as harder drugs like cocaine and heroin. State code defines Schedule I drugs as those with a high potential for abuse and those that “ha[ve] no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” Although a West Virginia state police crime lab employee testified at trial that she wasn’t sure whether marijuana met this standard, the Court explained that it was up to the legislature to make this call.

If you have been charged with a crime related to marijuana or other drugs, it is vital that you seek experienced legal representation. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

Warrant, Probable Cause Requirements in Police Home Searches – U.S. v. Hill

The ‘Diminished Capacity’ Defense Based on Voluntary Intoxication in West Virginia Criminal Cases – State v. Pustovarh

Probation and Revocation in West Virginia Criminal Cases – State v. Hann