William Kurtz appeals his convictions for manufacturing marijuana and for possessing more than 40 grams of marijuana. He also appeals the calculation of his offender score. We affirm his convictions but remand for resentencing.1
On March 1, 2010, police executed a search warrant at Kurtz's home. They located and seized growing and processed marijuana. They also located a marijuana growing operation.
The State charged Kurtz with manufacturing marijuana and possessing more than 40 grams of marijuana. Kurtz proffered medical authorizations for use of marijuana to establish an affirmative defense to the charges, as allowed by RCW 69.51A.040(2). But those authorizations were not signed until October 15, 2010, and October 21, 2010, respectively, after the date the marijuana was discovered and seized. The State moved to exclude those authorizations. The trial court granted the State's motion, relying on State v. Butler, 126 Wn. App. 741, 109 P.3d 493 (2005).
A jury found Kurtz guilty as charged. The trial court calculated his offender score for each conviction as one, using the other conviction as an "other current offense" under RCW 9.94A.525(1). Kurtz appeals from both his convictions and his sentence.
First, Kurtz argues that we should reverse our decision in Butler because we concluded incorrectly that the Medical Use of Marijuana Act, chapter 69.51A RCW, superseded the common law medical necessity defense established in State v. Diana, 24 Wn. App. 908, 916, 604 P.2d 1312 (1979), and State v. Cole, 74 Wn. App. 571, 578-79, 874 P.2d 878 (1994). But in Seeley v. State, 132 Wn.2d 776, 805, 940 P.2d 604 (1997), and State v. Williams, 93 Wn. App. 340, 347, 968 P.2d 26 (1998), the courts held that, as a schedule I controlled substance, marijuana had no accepted medical use and its use could not form the basis of a medical necessity defense. Thus, by the time the Act was passed, there was no common law medical necessity defense to a charge involving marijuana. Butler therefore correctly concluded that the Act was the controlling law on affirmative defenses to a charge involving marijuana. And under Butler, the trial court did not err in excluding the medical authorizations for Kurtz's use of marijuana because Kurtz had not obtained those authorizations before the marijuana was discovered and seized. Butler, 126 Wn. App. at 750-51.
Second, Kurtz argues that the trial court erred in not treating his conviction for possession and manufacture of marijuana as the same criminal conduct when calculating his offender score. State v. Bickle, 153 Wn. App. 222, 234-35, 222 P.3d 113 (2009). The State concedes that he is correct. We accept the State's concession and remand for resentencing.
We affirm Kurtz's conviction but remand for resentencing.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Van Deren, J.
We concur: Worswick, A.C.J. Johanson, J.
1. A commissioner of this court initially considered Kurtz's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.