P. v. Sillard
Sentenced to 15 years and eight months in county jail for possessing both methamphetamine and marijuana for sale, defendant Anthony Joseph Sillard appeals, contending the trial court: (1) violated his constitutional rights by failing to give a reasonable doubt instruction just before jury deliberations began; (2) erred in failing to instruct the jury on the lesser included offense of possession of marijuana; and (3) erroneously concluded that it had no power to suspend execution of a portion of his sentence under the Realignment Act.
We conclude that while the trial court did not violate defendant’s constitutional rights by reading the standard reasonable doubt instruction before the presentation of evidence began instead of just before jury deliberations, the trial court did prejudicially err in failing to instruct on simple possession of marijuana. Accordingly, while we affirm defendant’s conviction of possessing methamphetamine for sale, we reverse his conviction of possessing marijuana for sale and we remand the case to the trial court for further proceedings. As for defendant’s claim of sentencing error, that issue is moot in light of the reversal and remand, but we do note that there is no evidence the trial court denied defendant a split sentence because it misunderstood its authority under the Realignment Act.
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