Ellis v. State

O’BRIEN, Judge

dissenting.

I disagree with the view that the decision in State v. Black, 524 S.W.2d 913 (Tenn.1975) has undercut and overruled Wells v. State, 509 S.W.2d 520 (Tenn.Cr.App.1973), affirmed 517 S.W.2d 755 (Tenn.1974).

Plainly, the same circumstances and conditions existed in this case as in Wells, supra, in which our Supreme Court affirmed, and in so! doing said:

“We reason, as did the Court of Criminal Appeals, that all three indictments and their subsequent convictions were for the possession of a controlled substance. The possession of each was made a felony by Chapter 163 of ithe Public Acts of 1971. The record nowhere shows that the possession of each substance was acquired by a separate act. The possession, on the contrary, was a single possession and a single act. The jury found both defendants guilty of the possession, and the defendants do not now challenge that finding. There is sufficient material evidence to support the jury’s conclusion. But since there was, in each case, a single and not a multiple possession, there should be a single and not a multiple conviction and sentencing. . .

I would affirm the conviction for possession of LSD and dismiss the conviction for possession of marijuana.