(dissenting).
Barber was charged with unlawful possession of more than ten pounds of marijuana in violation of SDCL 22-42-6, a Class 4 felony. A jury found him guilty of the lesser-included offense of possession of less than one ounce of marijuana, a Class 2 misdemeanor.
An obvious question arises with regard to the additional “civil penalty” imposed on Barber. Is this simply a way to punish wrongs for which the State failed to get a conviction? In substance, how does this *379“civil penalty” differ from a fine imposed within a criminal statute? Under State v. Weiker, 366 N.W.2d 823, 825 (S.D.1985), punishment is unconstitutional if it makes no measurable contribution to acceptable goals of punishment and is a pointless infliction of suffering or is grossly disproportionate to the severity of the crime. In this case the “civil penalty” assessed is seven and one-half times the maximum statutory fine for the Class 2 misdemeanor. Under the majority opinion the court could have imposed a $10,000 “civil penalty” which would have been 100 times the maximum statutory fine for this Class 2 misdemean- or. Such a penalty may be proportionate to the severity of the crime as charged but is grossly disproportionate to the severity of the crime for which Barber was convicted.
This so-called “civil penalty” of $750 was superimposed upon the maximum “criminal penalty” for a Class 2 misdemeanor of 30 days in jail and $100 fine. This so-called “civil penalty” appears in Title 22 entitled “CRIMES” and can only be imposed upon conviction of a criminal, not civil, violation.
There is an old saying that if something looks like a duck, walks like a duck, and talks like a duck, it probably is a duck. Since this so-called “civil penalty” looks like a criminal penalty, walks like a criminal penalty, and talks like a criminal penalty, it probably is a criminal penalty. More importantly, it punishes like a criminal penalty and should be judged accordingly. As such, it constitutes an impermissible “double punishment” for a single criminal offense. State v. Huftile, 367 N.W.2d 193 (S.D.1985). Therefore, this case should be reversed and remanded for imposition of the maximum criminal penalty, and no more.