79 Wn.2d 788, THE STATE OF WASHINGTON, Respondent, v. AVERY JAY WARNER, Appellant

[No. 39932. Department One. Supreme Court      October 21, 1971.]

THE STATE OF WASHINGTON, Respondent, v. AVERY JAY
      WARNER, Appellant. *

Appeal from a judgment of the Superior Court for King County, No. 46351, Howard J. Thompson, J., entered September 27, 1967. Reversed.

Prosecution for violation of the Uniform Narcotic Drug Act. Defendant appeals from a conviction and sentence.

Avery Jay Warner, pro se.

Christopher T. Bayley, Prosecuting Attorney, and James J. Lamont, Deputy, for respondent.

PER CURIAM. -

Appellant was found guilty of the unlawful possession of marijuana (RCW 69.33.230) on August 17, 1967. On September 28, 1967, an order was entered denying appellant's motion for a new trial, and on October 3, 1967, notice of appeal was timely filed. On June 7, 1968,

 Oct. 1971]                         STATE v. SILER               789 
79 Wn.2d 789, 489 P.2d 921

a notation order was entered on the motion docket dismissing the appeal for want of prosecution and the cause was remitted to the King County Superior Court on February 4, 1971. Good cause having been shown, an order was entered recalling the remittitur and reinstating the appeal. In State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), we held that the Uniform Narcotic Drug Act (RCW 69.33) becomes inapplicable to a criminal offense involving marijuana, whether the proceeding be at the prosecution stage or pending appeal, as of the effective date of Laws of 1969, Ex. Ses., ch. 256, 7(13), p. 2386, which removed marijuana from the scope of the act. Since the appeal is now pending, the judgment in this case must be reversed and the action dismissed.

It is so ordered.