I respectfully dissent. The focus of this case is whether the Marijuana and Controlled Substance Tax Act has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause. The United States Supreme Court in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. —, 114 S.Ct. 1937, 128 L.Ed. (2d) 767 (1994), addressed the question whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for the same conduct violates the constitutional prohibition against successive punishments for the same offense. The U.S. Supreme Court stated that Montana could collect its tax on the possession of marijuana if it had not previously punished the taxpayer for the same offense, or if it had assessed the tax in the same proceeding that resulted in his conviction. The Court held the drug tax was not a remedial sanction that may follow the first punishment, but instead was a second punishment that must be imposed during the first prosecution or not at all. Further, the Court found the proceeding Montana initiated to collect the tax on possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time for the same offense.
The majority in McMullin noted that what the U.S. Supreme Court found punitive in Kurth Ranch are two features that are absent in our statute. However, the U.S. Supreme Court did not rely only on these two features to find it punitive. Furthermore, South Carolina’s statute is sufficiently similar to Montana’s notwithstanding the differences. As stated by the U.S. Supreme Court in Kurth Ranch, the justification that this is a revenue measure vanishes in light of the forbidden activity which is taxed and considering that it could just as well be accomplished by increasing the fine upon conviction.
I would find the South Carolina Marijuana and Controlled Substance Tax Act is substantially similar to Montana’s Drug Tax Act. Accordingly, the Marijuana and Controlled Sub*481stance Tax Act as applied to McMullin is properly characterized as punishment for purposes of double jeopardy and constitutes in this case a second punishment which had to be imposed during the first prosecution or not at all. Ward v. Texas, — U.S. —, 115 S.Ct. 567,130 L.Ed. (2d) 485 (1994); Stennett v. Texas, — U.S. —, 115 S.Ct. 307, 130 L.Ed. (2d) 271 (1994) (vacating and remanding judgment that assessment of tax on marijuana found in defendant’s possession did not constitute punishment for double jeopardy purposes in light of Department of Revenue of Montana v. Kurth Ranch, supra).