concurring.
The convictions in this case involve two kinds of pills which were both Schedule II narcotics. The Court of Appeals held, and we agree, that it was double jeopardy to punish twice for possession of (and trafficking in) narcotics in a single transaction or occurrence simply because two kinds of controlled substances were involved.
The Commonwealth admitted that the transaction involved a single criminal impulse, but claimed that, because two kinds of pills were involved, there were “compound consequences.” Our Court has rejected this claim, stating this case “presents a single impulse act having no compound consequences.” We have reached the only logical conclusion.
I write separately only because we have failed to overrule our previous decision in Kroth v. Commonwealth, Ky., 737 S.W.2d 680 (1987), wherein I dissented, which is logically indistinguishable. Kroth held the double jeopardy principle was not implicated where the circumstances involved a single transaction with two controlled substances from different Schedules. There is no reason to make a distinction between a double penalty for a single transaction involving Schedule II and Schedule III drugs (as in Kroth) and one involving two different kinds of pills both on Schedule II (as here).
No one suggests that each pill represents a new offense. Yet, it should be obvious that the offense increases in seriousness more by reason of the number of pills involved than because different kinds of pills are involved. Indeed, two kinds of pills both from Schedule II necessarily create a more serious criminal risk than where some pills are from Schedule II and some from Schedule III, because Schedule II pills are so classified because they are more dangerous (or more addictive) drugs. Yet, we have ruled that possession of (and trafficking in) two kinds of pills both from Schedule II is one offense even though it would be two offenses if one kind is from Schedule III and the other from Schedule II.
Kroth represents a “glaring misapplication of the double jeopardy principle.” Kroth, supra at 682, Leibson, J., dissenting. My dissent stated in pertinent part:
“There is no provision anywhere in KRS Chapter 218A, Controlled Substances, to the effect that the possession at the same time and place of more than one type of controlled substance constitutes multiple offenses.
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A number of other jurisdictions have considered the present double jeopardy question in cases very similar to our own, and apparently all have reached the opposite conclusion, holding that:
‘[T]he simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed. [Citation omitted.]’ ”
Id. at 683.
I concur in the present Opinion, while further stating that we should also overrule Kroth because it is not significantly different from the present case.