Fisher v. State , 1972 Miss. LEXIS 1373 ( 1972 )

GILLESPIE, Chief Justice:

Steve Fisher was convicted of the sale of lysergic acid diethylamide (LSD) and sentenced to five years in the state penitentiary. On his appeal to this Court he contends that the trial court erred in refusing his requested instructions on the defense of entrapment. We affirm the conviction on the authority of Alston v. State, 258 So.2d 436 (Miss.1972). It is unnecessary to discuss the facts because there is no merit whatsoever in the defendant’s contention that he was entitled to instructions submitting to the jury the question of entrapment.

The question is also raised whether thq defendant should have been sentenced under Mississippi Code Annotated section 6831-70(a) (1) (1971), which provides a maximum of six years’ imprisonment for the manufacture or delivery of a controlled substance which is “a narcotic drug,” or whether he should have been sentenced under section 6831-70(a) (2) which provides for a maximum of four years’ imprisonment for the manufacture or delivery of “any other controlled substance.” The State concedes, and we agree, that LSD belongs to a class of hallucinogens which is not a narcotic drug. See Miss.Code Ann. § 6831-56 [Definitions], and §§ 6831-57, 58 (1971). Accordingly, we find that the defendant was sentenced to one year more than authorized by the statute, and we therefore affirm the judgment of conviction and remand the case to the trial court for resen-tencing.

Affirmed and remanded for resentencing.

JONES, BRADY, INZER and ROBERTSON, JJ., concur.